Our Take on the Ogletree Ruling

We’ve received a number of questions from Respondus Monitor customers about the court ruling in Ogletree vs. Cleveland State University. It involved a student who took an online exam from home and was required to show areas of his bedroom using a webcam. In a summary judgement ruling, a district court found the university had violated the student’s Fourth Amendment rights.

We share our thoughts about this decision below. However, it comes with an important disclaimer: Nothing stated here is intended to constitute legal advice; all information, content, and materials provided below are for general information purposes. Contact legal counsel at your institution with respect to this or any legal matter.

Q. Where can I find legal documents for Ogletree vs. Cleveland State University?

There are many unique elements to this case, so we encourage your legal counsel to read the original complaint by the plaintiff, the summary judgement motion, and the Opinion and Order by the court.

Q. Will this decision affect my institution/organization?

The decision was issued from the United States District Court in Ohio, which means the decision is not binding on other district or appellate courts in the United States. This decision relied on a very fact dependent inquiry and therefore we do not believe this is a landmark ruling relating to remote proctoring technologies. Further, the factual elements were both unique and atypical of how technologies like Respondus Monitor are used. For example, there were unusual factors because of COVID restrictions and the student’s health, the student had previously objected to using a webcam to show his home examination environment, the instructor agreed to modify this requirement but apparently hadn’t conveyed this to the university’s testing services group, the exam was proctored over a live Zoom session where other students could watch the environment video, and so forth. It was in this context the student filed suit against the university, and to which this ruling applies.

Also, the Fourth Amendment protects people against unreasonable searches of their personal property only when those searches are performed by the government. Private universities and companies are generally not considered to be a government entity. Speak to your legal counsel about the applicability of the Fourth Amendment to your organization.

Q. Was Respondus Monitor implicated in the ruling?

The Respondus Monitor service was not found by this court or any court to be in violation of the 4th Amendment of the U.S. Constitution. In fact, the Plaintiff argued that LockDown Browser and Respondus Monitor (which were licensed by his university) would have been a superior, less intrusive option for ensuring academic integrity during his online test. This lawsuit relates to specific facts of an online test where a student was proctored by university staff using a web conferencing system.

Q. Does this mean a university cannot require students to show their examination environments to instructors or proctors during a remote exam?

We do not believe this conclusion to be correct. A university has a legitimate need to maintain the integrity of assessments delivered to their students. Rather, this decision emphasizes the importance for a university to have a policy that clearly conveys that students may be required to show their examination environments with a webcam during an online test, and that there is consent to it. There may be other requirements universities choose to implement for online examinations too, such as having proper lighting, being free from distractions, perhaps even wearing proper attire.

While universities should work directly with their legal counsel to develop their specific policies, Respondus is also taking actions to ensure there is clarity in our terms around what students are agreeing to when they use Respondus Monitor. The exact changes are outlined more fully below.

Q. Is Respondus doing anything to help institutions align their online testing policies with proctoring services like Respondus Monitor?

Respondus has taken several steps to help universities strengthen their online testing policies. First, it has added the following paragraph to the boilerplate text that universities often use for their portion of the Student Terms of Use for Respondus Monitor.

If your institution or instructor permits you to use Respondus Monitor at a non-university location, you agree to select a location that meets any and all university guidelines. If the location you choose is a home or personal environment, you agree to allow your activity and surrounding workspace to be recorded by video and audio and then analyzed by the Respondus Monitor system.

Similar text has been added to the Terms of Use section that is between Respondus and the student:

If you are using Respondus Monitor at your home or in a personal area, you agree to allow your activity and surrounding workspace area to be recorded by video and audio and then to be analyzed by the Respondus Monitor system.

Students will see the updated Terms of Use each time they start an exam session that uses Respondus Monitor.

Respondus has also updated the sample text available to instructors for their syllabus. One of the sections now reads:

Select a location where you are comfortable having a video recording taken of yourself and your workspace environment. This area should also be free of distractions and interruptions.

Q. What legal advice can Respondus offer us?

None. As indicated above, nothing stated here is intended to constitute legal advice; all information, content, and materials are for general information purposes. Contact legal counsel at your institution with respect to this or any legal matter.

Related media references:
https://www.nytimes.com/2022/08/25/us/remote-testing-student-home-scan-privacy.html
https://thecheatsheet.substack.com/p/special-edition-the-ohio-room-scan