Unconstitutional Room Scans? The Fourth Amendment in the Digital Age

by Hailey Martin, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The COVID-19 pandemic raises new, interesting issues concerning how our society functions, particularly in online schooling. Ogletree v. Cleveland State University appears to be the first case in the nation to hold the Fourth Amendment protects students from unreasonable video searches of their homes before taking a remote test.¹ Part II of this article provides factual and legal background on Ogletree, which held that the University’s room scan policy for remote exams infringed on plaintiff’s Fourth Amendment rights and was an unreasonable search. Part III discusses the policy implications of the decision and how Fourth Amendment jurisprudence has changed given contemporary technological innovation. Additionally, Part III argues the majority in Ogletree was correct in concluding that the room scan technique is a search analyzed by the Fourth Amendment but incorrect in finding it was an unreasonable search. Finally, Part IV concludes by noting the long-term implications of the Ogletree decision and the future of Fourth Amendment jurisprudence post-pandemic.

II. Background

Cleveland State University, like many other educational institutions across the nation, implemented online classes as an option for students when the COVID-19 pandemic occurred as an alternative to in-person learning. Cleveland State’s policies for proctored exams, whether online or in person, require students to show their ID next to their face in addition to scanning the room they are in.² During the COVID-19 pandemic, Aaron Ogletree, a chemistry student at Cleveland State University, attended classes remotely.³ On February 17, 2021, Ogletree was scheduled to take a General Chemistry II exam remotely in his home.⁴ Two hours before the exam was scheduled, Cleveland State Testing Services emailed Ogletree to inform him the exam proctor would be checking his ID, exam materials, and surroundings.⁵ Ogletree initially objected to this, claiming he had confidential materials in his room and did not have enough time to secure them elsewhere.⁶ However, he eventually complied with the room scan that, according to the record, lasted between ten and sixty seconds.⁷ Ogletree alleged the University violated his Fourth Amendment rights against unreasonable searches by conducting the room scan and moved for summary judgment.⁸

The Ogletree court first analyzed the scope of the Fourth Amendment and concluded that the remote virtual room scan at issue qualified as a search within the Fourth Amendment.⁹ A Fourth Amendment search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.”¹⁰ Cleveland State University argued that the student’s expectation was not reasonable since room scans are a “standard industry wide practice” and students frequently encounter these situations, especially post-pandemic.¹¹ The court rejected this argument holding that Ogletree’s subjective expectation of privacy is one that society views as reasonable and lies at the core of the Fourth Amendment.¹² Additionally, Ogletree found that following Katz v. United States, Fourth Amendment jurisprudence “examines an individual’s expectation of privacy in a particular place.”¹³ The ubiquity of a particular technology or its application does not directly bear on that analysis.¹⁴

The Fourth Amendment prohibits only unreasonable searches.¹⁵ This reasonableness standard is measured by balancing the interest of the individual against the interest of the government.¹⁶ Traditionally, reasonableness requires a warrant, which relies on probable cause; however, a reasonable search can still occur without probable cause.¹⁷ The exception to suspicion-less searches is the special needs exception, applicable when the government has “special needs, beyond normal need for law enforcement.”¹⁸ To determine when the special needs exception applies, courts consider (1) the nature of the privacy interest affected; (2) the character of the intrusion; (3) the nature and immediacy of the government concern; and (4) the efficacy of the means of addressing the concern.¹⁹

Based on these factors, the court concluded that Ogletree’s privacy interest in his home outweighed Cleveland State’s interest in scanning the room,²⁰ rendering the search unreasonable under the Fourth Amendment.²¹

Regarding the nature of the privacy interest, it is well settled that the home is at the core of the Fourth Amendment’s protections. Cleveland State argues Fourth Amendment rights are different in the context of schools and the court should consider the school’s responsibility for children in its analysis.²² The court rejected this proposition holding that the University relied on cases concerning elementary and secondary schools, involving minor students, who had mandated class attendance,²³ rather than an adult enrolled in higher education by choice. Under these facts, the nature of the privacy interest existing at the core of the Fourth Amendment could not be abrogated.²⁴

Regarding the character of the intrusion, Ogletree analyzed several considerations.²⁵ Specifically, it acknowledged that, pre-pandemic, Ogletree may have had more options like taking different classes with different testing options or enrolling at another college to fulfill his more demanding privacy needs.²⁶ However, because of the pandemic, these options were unavailable. The record established that Ogletree was unable to attend in person classes for health reasons.²⁷ The court also considered the intrusiveness of the room scan, and found it to be very minimal.²⁸ To support this conclusion, the court found that the scan occurred over an exceedingly short period of time, the student had the discretion on where to point the camera, and he received a warning of the room scan two hours before it occurred.²⁹ However, the court found these factors weighed in Ogletree’s favor.³⁰

The University argued the government interest is that room scans facilitate proctoring of tests and ensure academic fairness and integrity.³¹ The student conceded these are legitimate interests and the court agreed.³²

However, the court found that other procedural safeguards would advance this same interest.³³ Ogletree contended that room scans have minimal value as there are plenty of ways for students to still cheat, including by using cell phones or notes since, after the initial room scan, students were not required to be on camera for the remainder of the exam.³⁴ Additionally, test alternatives, like a final paper or project, would minimize the need for remote room scans.³⁵ For these reasons, this consideration weighed heavily in the student’s favor.³⁶

After consideration of these factors, the court concluded that the student’s interest in privacy outweighed the interest of the State. Thus, the search was unreasonable and the student’s motion for summary judgement was granted.³⁷ The case is currently awaiting appeal.

III. Discussion

Since the COVID-19 pandemic, our society has drastically changed. With social distancing being the new normal, many people adjusted to working and learning from home. What once was a private, sacred place, has become the hub for learning, work meetings, Zoom calls, and group projects. To some, the meaning of “home” has expanded beyond the depths of simply a place to eat and sleep and has evolved to encompass one’s entire lifestyle. With these drastic changes, the reading of the Fourth Amendment must change as well. Here, the court correctly decided that the Fourth Amendment applies to a remote room scan. However, the court incorrectly concluded that this search was unreasonable.

The fact that this search took place in the home is the strongest indicator that the Fourth Amendment was intended to protect this kind of act. The University relied heavily on the idea that the room scan does not constitute a search and therefore is not subject to scrutiny under the Fourth Amendment.³⁸ In support of this proposition, it relied on the Supreme Court case, Wyman v. James and its progeny.³⁹ Wyman held that a home visit by a caseworker to a welfare beneficiary did not constitute a search in the traditional criminal law context and that home visits are not searches under the Fourth Amendment.⁴⁰ The University argued the scans did not constitute searches because they were done for regulatory purposes, they were not coerced, they were limited in scope, and they were less intrusive than home visits in Wyman.⁴¹ The court correctly rejected these arguments, concluding that Wyman was decided more than fifty years ago, and technological advancements have drastically altered Fourth Amendment jurisprudence.⁴² Wyman is of limited applicability.⁴³ Therefore, Ogletree is correct in holding that the room is a search under the Fourth Amendment. Ogletree acknowledged any contrary holding “raises more questions about what legal standard, if any, governs the scans and the potential consequences of such a ruling in other areas of life and the law that technology touches.”⁴⁴ Had the court found otherwise, the individual right protected by the Fourth Amendment would be seriously hindered and attacked. Ogletree upholds an individual’s right to privacy in their home free from intrusion, fulfilling the purpose of the Fourth Amendment.

However, as applied to this specific set of facts, the room scan by Cleveland State was not unreasonable. As mentioned above, institutions across the nation, even before the pandemic, implemented software that requires room scans to ensure academic integrity while test-taking. Students enrolling in educational institutions accept this practice. The court noted twice in its opinion that schools routinely implement remote technology “without objection from most, or nearly all students.”⁴⁵ Upon enrolling in a university, students either implicitly or explicitly accept the University’s policies. Honorlock and Respondus, the two remote exam softwares used by Cleveland State, explicitly state in their policies that room scans will occur for online exams.⁴⁶ Ogletree’s argument is lacking merit when he contends he had no other options than online learning due to the pandemic. True, in person classes were not an option for Ogletree, but Ogletree was,⁴⁷ or should have been, on notice of exam policies. Ogletree was provided sufficient time to take the exam if he was uncomfortable in his home or secure his belongings elsewhere before the scheduled exam was to begin.

An individual’s privacy in their own home outweighs the government’s interest in academic integrity alone. However, when considering the specific facts and circumstances in Ogletree, the issue becomes more fluid. Ogletree’s room scan was less than one minute long.⁴⁸ Additionally, he had discretion over what was shown and whether to even allow the proctor to conduct the room scan.⁴⁹ The proctor conceded that, had any student refused the room scan, she would have allowed the student to take the test and notify the professor that the student refused to perform the room scan.⁵⁰ Therefore, no direct, negative impact would have resulted had Ogletree denied the room scan.⁵¹ It was an option, and, for that reason, Ogletree consented to the search.⁵² It was not unreasonable.

In contrast, a similar case has arisen out of Palm Beach, Florida, in which Tara Duncan is suing Pearson Education alleging Pearson forced her to bring her computer into a bathroom and forced her to leave the camera and microphone on while she relieved herself.⁵³ After several inquiries about using the restroom during an online exam, the proctor told Duncan she could take her computer to the restroom with her while she relieved herself or otherwise would fail the exam.⁵⁴ Failure to leave her camera and microphone on during this would have also resulted in failure on the exam.⁵⁵ The search was intrusive and involved private, intimate behaviors.⁵⁶ The search was coercive and non-negotiable. The search was mandatory to finish and not fail the exam. Here, there is a complete invasion of privacy entirely distinguishable from Ogletree.

IV. Conclusion

The COVID-19 pandemic has opened a proverbial can of worms in how we analyze privacy rights. The pandemic, coupled with society being forced to radically adapt and advance, has created more chances for potentially intrusive acts infringing on personal rights and liberty. The Fourth Amendment steadfastly aims to protect against unlawful searches and seizures. The home has long been held to be one of the most sacred places a person can occupy. Although this author disagrees with the court’s holding that this was an unreasonable search, the Ogletree decision ensures privacy rights are upheld and safeguarded, even in rapidly changing circumstances. However, the decision in Ogletree begs the question of how far is too far? To hold a less than sixty second, consented to, self-monitored, room scan to be an invasion of privacy, Ogletree hinders institutions nationwide from ensuring high educational performance.

Cover Photo by Andrew Neel on Unsplash

Hailey Martin

Hailey Martin grew up in Columbus, Ohio and is a Double Bearcat at UC, majoring in psychology for undergrad. Outside of Law Review, Hailey serves on SBA as the Social Media Chair, on Family and Juvenile Law Club Exec, and is an SSG Leader. Outside of law school, Hailey enjoying cycling and working at Cyclebar, running, and staying active.

References

1
Alec Sapolin, Cleveland State Student Wins Federal Lawsuit Against University on Breach of Fourth Amendment, 19 News (Aug. 22, 2022, 11:17 PM), https://www.cleveland19.com/2022/08/23/cleveland-state-student-wins-federal-lawsuit-against-university-breach-fourth-amendment/.
2
Ogletree v. Cleveland State, No. 1:21-cv-00500, 2022 WL 3581569, at *2 (N.D. Ohio Aug. 22, 2022).
3
Id.
4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id. at *3. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated . . . .”).
10
Id. at *5 (citing Katz v. United States, 389 U.S. 347, 361 (1967)).
11
Id. at *4.
12
Id. at *5. See Katz, 389 U.S. 347 at 360 (Harlan, J., concurring).
13
Id.
14
Id. Cf. Kyllo v. United States, 533 U.S. 27, 34-35 (2001) (holding police use of technology not widely available without a warrant constituted an unreasonable search).
15
Id. at *7.
16
Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989).
17
Id. at 619-20.
18
Griffin v. Wisconsin, 483 U.S. 866, 873 (1987) (quoting New Jersey v. T.L.O, 469 U.S. 325, 345-347 (1985)).
19
Id. at 654. Historically, application of this doctrine has been somewhat limited. See New York v. Burger, 482 U.S. 691 (1987) (applying doctrine to administrative inspections); United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (administrative inspections); New Jersey v. T.L.O., 468 U.S. 1214 (1984) (school searches); Bell v. Wolfish, 441 U.S. 520 (1979) (jail and prison searches); United States v. Knights, 534 U.S. 112 (2001) (probation-related searches).
20
Ogletree v. Cleveland State, No. 1:21-cv-00500, 2022 WL 3581569, at *10 (N.D. Ohio Aug. 22, 2022).
21
Id.
22
Id. at *8.
23
Id.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
30
Id.
31
Id. at *9.
32
Id.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at *10.
38
Ogletree, 2022 WL 3581569, at *6.
39
Wyman v. James, 400 U.S. 309, 315 (1971).
40
Id. at 316.
41
Ogletree, 2022 WL 3581569, at *6; see also New York v. Burger, 482 U.S. 691, 691 (1987).
42
Ogletree, 2022 WL 3581569, at *6.
43
Id. Specifically, Wyman is used in the context of upholding termination or denial of a benefit following the beneficiary’s refusal to consent to an inspection. See also Andrews v. Hickman County, Tennessee, 700 F.3d 845 (6th Cir. 2012); Calabretta v. Floyd, 189 F.3d 808, 816 (9th Cir. 1999).
44
Ogletree, 2022 WL 3581569, at *7.
45
Id. at *4. Additionally, the proctor testified she has never had a student refuse a room scan from being conducted.
46
Id. at *2. Respondus prevents students from accessing the internet or using other computer programs during a remote test and records the student taking the exam using artificial intelligence. Similarly, Honorlock uses a student’s camera and artificial intelligence monitoring.
47
Id. at *2. The test coordinator at Cleveland State informed Ogletree “by email that it has a process of performing a cursory review of the student’s immediate testing space and all students, regardless of the course or instructor, are asked to do this as part of the check-in process.” Id.
48
Id. at *3.
49
Id. at *3.
50
Id. at *2.
51
But see Hill v. NCAA, 865 P.2d 633, 637 (Cal. 1994). In Hill, student-athletes refusing to take the drug test lost NCAA eligibility. Id.
52
See United States v. Drayton, 536 U.S. 194 (2002); cf. Karen E. Crummy, Urine or You’re Out: Student-Athletes’ Right of Privacy Stripped in Hill v. NCAA, 29 U.S.F.L Rev. 197, 210 (1994) (arguing that one’s consent to an invasion of privacy may effectively waive his or her right privacy under the Fourth Amendment when it is freely and voluntarily given and not the product of duress or coercion).
53
Andrew Colton, CLAIM: Remote Proctor Forces Local Woman to Urinate on Camera During Final Exam, Boca News Now (Nov. 30, 2021), https://bocanewsnow.com/2021/11/30/claim-remote-proctor-forces-local-woman-to-urinate-on-camera-during-final-exam/.
54
Complaint at ¶ 19, Duncan v. Pearson Education, Inc., 9:22-cv-80385-AMC (S.D. Fla. Feb. 23, 2022), ECF No. 1.
55
Id. at ¶ 20.
56
But see Hill, 865 P.2d at 658 (holding the observation of random urine sampling for college athletes implicates privacy interests, but the intrusion is justified because the NCAA’s program is reasonably calculated to further its interest in maintaining the integrity of intercollegiate athletics).

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References