Wednesday, September 7, 2022
In contracts-adjacent news, in Ogletree v. Cleveland State University, District Court Judge J. Phillip Calebresi destroyed education in the twenty-first century. That might be a slight exaggeration.
Cleveland State contracts with Respondus and Honorlock to provide proctoring services for tests conducted online and remotely. Those proctoring tools require that each student engaged in remote testing conduct a room scan. According to the opinion, students taking the exam can see the room scans of other students, which is creepy and weird and seems either just wrong about how these things work or completely avoidable.
Plaintiff Aaron Ogletree was a chemistry student enrolled at Cleveland State. During COVID, he could not attend classes in person, and he lived with family. The only place where he could take exams without interruption was his bedroom. Mr. Ogletree objected to a room scan of his bedroom because, he said, confidential tax documents were spread all around his desk, and he had no time to clean them up. Nonetheless, the scan occurred, lasting between ten seconds and a minute. The proctor from Honorlock saw no tax documents. Mr. Ogletree claimed that the room scan violated his Fourth Amendment rights, and the District Court agreed.
This is not my area of law, so I will not comment on the Court's reasoning as to whether the room scan constituted an unreasonable search. If anybody has a link to a good discussion of that aspect of the ruling from the perspective of an expert on the 4th Amendment, please share in the comments.
For my part, I can only suggest contractual solutions. It seems to me that there must be contractual solutions, because Judge Calebresi's opinion renders remote testing extremely difficult, and the proctoring tool that he deems unconstitutional has become the industry standard.
I have lamented in other posts courts' unwillingness to balance rights and interests, including contracts rights, against constitutional rights. The most recent post is here, and it links to other posts on the subject. I wonder if schools that use such proctoring software can get students to agree in advance to a room search. Any such waiver would have to be bulletproof in terms of evidencing meaningful consent in order to overcome the rights absolutism that Jamal Greene has identified with respect to a few protected rights, which usually includes 4th Amendment rights. I think such a waiver would move the room scan, even on Judge Calebresi's reasoning from the realm of non-consensual search into the realm of consensual search.
H/T OCU student Jordan Kimball.