Special Edition: The Ohio "Room Scan" Case
A full Issue dedicated to this important development in academic integrity.
SE2
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The Ohio “Room Scan” Case
Notes: There is a ton of stuff to get to but I’m doing this entire Issue on the Ohio case because it’s important and because it’s being misrepresented and misunderstood, I think. Also, please note that I am not a lawyer. This is not legal analysis or legal advice.
What Actually Happened - “Room Scans” Were Not Banned
Last week, a judge declared that a pre-test remote “room scan” by Cleveland State University violated a student’s rights under the Fourth Amendment.
Unsurprisingly, most news reports got it wrong, declaring that “room scans” were unconstitutional. The New York Times got it right as their headline said:
Remote Scan of Student’s Room Before Test Violated His Privacy, Judge Rules
Having had a chance to read the court documents, the difference is big. What the court found is not that reviewing a student’s test environment before a test is unconstitutional but that the review, as it was done in that situation, was the problem.
And that’s big because, frankly, it’s nearly implausible that schools will replicate the errors that Cleveland State made. I don’t like to blame schools, but Cleveland State screwed up.
Even so, it’s clear that this ruling - even if it did ban environment reviews - is very limited. At most, it would apply only to public schools in a portion of Ohio. The attorney for the student who sued told The Times:
if the court decided to issue an injunction, or order, against the process, it would apply only to Cleveland State University
In other words, the court did not declare proctor scans of a testing area unconstitutional - at least not as they apply to anyone else anywhere. It’s what I have heard lawyers refer to as a “fact dependent” case - that this outcome relied on this specific set of facts. And they were odd - and not great.
What Cleveland State Did (Wrong)
Here are a few facts of the Cleveland State situation, based on the legal documents:
The pre-test review was done by a school employee from the school’s test center, not by an outside proctoring provider.
The pre-test camera review was visible to other students sitting for the exam. They used Zoom. This should never ever happen. That alone should have raised major issues - and it did.
The student who sued said he was unable to access on-site test options because of health and Covid restrictions. He claimed that a remote test, with what he believed required the environment review, was his only option and that if he did not consent, he would fail his test.
The syllabus for the course in which the exam was delivered included a reference to remote proctoring, including a pre-test review of the test setting. Seeing this, the student protested and the teacher removed the provision from the syllabus.
Though, it seems, no one told the test center that a pre-test room review was no longer required. So, the proctor insisted on it, as they were trained.
Although the student had about two hours notice that his test area would be subject to a proctor review, he did not remove sensitive materials from the area including tax documents and medications.
Those facts are pretty unusual.
Inconsistency in Policy and Practice
Moreover, it’s clear from the legal documents that the school’s inconsistencies really hurt its case.
For example, it was difficult to convince the judge that seeing a student’s desk or test setting was necessary in order to maintain test integrity when the school did not require it. Cleveland State said that teachers could, at their discretion, use the pre-scan - or not. They could use a remote proctor - or not.
This is from the student’s attorney - in this and all future cases, I removed the legal citations for ease of reading:
Though offering all these safeguards, CSU does not actually require any of them. The University gives professors “a great deal of autonomy” how to conduct remote testing. It lets individual professors choose which of the available remote-proctoring tools to use and in which combination. For instance, a professor could opt for only the LockDown Browser or could use it in combination with Monitor. Or a professor could choose to use none of the remote-testing tools. For that matter, the University permits a professor to give “an online test without being proctored at all.” As [a CSU director] puts it, it is a matter of “faculty discretion.”
This was important because the school’s attorney - who is the Ohio Attorney General, by the way - and the student’s attorney and the Judge all agreed that the school had a legitimate interest in preventing cheating. It was that the school did not appear to take the interest seriously enough to make any of the procedures mandatory, that made them seem - well, optional and arbitrary. Which they were.
And if these procedures aren’t really important enough to be required, the loss of privacy in viewing a student’s room cannot be justified in order to complete them, the Judge found.
On this point as well, the student and the Judge made a point to note that even the school’s policy requiring a student to show photo ID before a test, so that it could be matched with school records, was not always followed. The school seemed, in other words, to view their academic integrity policies pretty loosely, thereby undercutting their argument that the pre-test review was actually important. Shorter still: CSU did not follow its own rules on test integrity.
In the order, the Judge wrote:
Cleveland State neither requires nor recommends the use of a room scan pursuant to any written policy. In a non-proctored exam, there is no room scan.
Again, CSU did not have policies for things it said were required, did not actually require the things it said were mandatory and made just about everything discretionary.
Quoting the Judge again:
Additionally, the record here shows a variable policy — enforced, unevenly, in the discretion of a combination of proctors and professors—of using remote scans that make a student’s home visible, including to other students, with uncertain consequences.
That is what happened. As I said, Cleveland State screwed up.
Probably Entirely Fixable
In the fast legal analysis I highlighted in the last Issue, the attorney wrote that this:
decision points to fatal flaws in Cleveland State’s approach to remote-proctored testing which are easily avoided with some advance planning by public colleges and universities. All public colleges and universities should consider: (1) developing and enforcing a standardized, written university policy that removes discretion from professors as to how remote-proctored tests are administered; and (2) obtaining written consent from students to room scans and all facets of the remote-proctoring process, at the start of each semester (well in advance of test administrations). As is evident in the court’s opinion … if Cleveland State had only implemented these two measures, it is improbable that the court would have ruled as it did in this case.
Exactly. And worth reading again.
And to underscore again that this ruling was not a ban on remote review of testing environments, and that it’s probably fixable, the Judge also said:
In normal times, a student might be able to choose another college or among classes with different options for tests and assessments. A student who valued privacy more might opt for courses with in-person tests, while another who prefers convenience might tolerate an intrusion of the sort at issue here. Cleveland State’s policies and practices make such choices and tradeoffs opaque, at best.
I read that as saying that had CSU been clear from the outset that online classes and remote exams required a remote proctor, including a review of your testing environment, such “tradeoffs” - privacy for convenience - could be just fine.
The Judge went on to say that in this specific case, such policies were a mess, options were limited by Covid and the student was told a scan would not be required, though it was, but actually wasn’t. The Judge is right - opaque may be too kind.
Further illustrating that the Judge was not flatly opposed to the “room scan,” he wrote:
But the room scan at issue was minimally intrusive. It is undisputed that the scan occurred over an exceedingly short period of time, and [the student] had discretion over where to direct the camera in his room, as well as some warning to take steps to protect his privacy and ensure that the confidential materials he had were not readily in view. On the other hand, other students can see the room scans.
There is no excusing the last part. None.
But either way, that does not sound like someone who is striking a blow for privacy.
On Scans and Pedagogy and Integrity
The Judge also weighed in on the academic integrity impacts of a “room scan” saying:
Also, pedagogical alternatives to tests for assessing students, for instance, a final project or paper, might minimize or eliminate the need for remote scans.
Here, I will point out that the student was taking a chemistry test. And while I am no expert in chemistry, I am suspicious that a “final project or paper” will work in chemistry. Or genetics. Or calculus. Sometimes, you need to show you know how to get the right answer.
The Judge again:
[The student] points to several ways in which students may cheat regardless of the use of room scans. Besides pointing to the potential deterrent effect, [CSU] does not offer much argument or evidence to support the efficacy of room scans.
Ah, I love this argument. Because students can still cheat, the effort to stop it is less valuable. We don’t really need door locks because robberies still happen. People still rob banks, so vaults, teller screens, security cameras, guards, silent alarms, dye packs - all pointless. Speeding - radar guns. You get it.
The “deterrent effect” is real, though I am not sure why the school did not argue that seeing the test environment is effective. I don’t know of any research on the remote area scans specifically, but there’s plenty of evidence supporting that they prevent cheating. Or at least limit cheating opportunities. Since these reviews usually happen before a test starts, they don’t often “catch” cheating. But there’s no question they deter it and prevent it by limiting opportunity and temptation.
The Judge again:
Perhaps experience with room scans is too recent or not extensive enough to offer much in this regard. Whatever the case, a record of sporadic and discretionary use of room scans does not permit a finding that rooms scans are truly, and uniquely, effective at preserving test integrity.
True. As mentioned, I am not aware of any research on this topic specifically. Though there is plenty of data on it. But most importantly, the Judge says again that their “sporadic and discretionary use” speaks to them not being important. Flipped over, had the school required them always, with a written policy in support, they may have won that argument and maybe more.
This is from the student’s lawyer:
Were searching a student’s room so indispensable to remote-test integrity, CSU would not have omitted it from the written policy it developed through the joint effort of faculty and administration. Nor would it permit such wide “faculty discretion” to decide whether a room scan is necessary. This otherwise-lax attitude belies the claim that even the University truly believes a room scan is vital for test integrity.
He has a point.
By now you see the theme - it’s not that CSU required a “room scan” that was the problem. The problem was that they actually didn’t.
Another Note or Two
The student in this case alleged that CSU was responsible for:
intentional infliction of emotional distress
He says he:
suffered emotional anguish and embarrassment
And that:
[The school] either intended to cause [him] emotional distress or knew or should have known that their actions would result in serious emotional distress to [him].
[The school’s] conduct was so egregious as to go beyond all bounds of decency and was such that can be considered utterly intolerable in a civilized society.
[The school’s] actions were the probable cause of [his] psychic injury.
The mental anguish suffered by [him] has existed since he was subjected to [the school’s] illegal policies and searched against his will and is of a nature that no reasonable person should be expected to endure.
The student says that at the time of the exam, at the time of the testing environment review, he did not object. He also says he scored a 99% on the exam. The record should also be clear that the student initially asked for money - $14,000 plus legal costs.
In Conclusion
As is usually the case, despite the headlines and hyperventilation, the ruling in Ohio probably is not a big deal outside of what it means to this school and this student.
The Judge sent the parties away to discuss a resolution. That may - or may not - include a ban on future pre-test setting scans at the school. Though it’s just as likely that it will only include policy and practice revisions, which would ban scans done under those unusual circumstances. Honestly, it should. CSU definitely needs to do that. And maybe a ban on using Zoom to proctor exams, which is probably necessary too.
Further, the Judge and student’s lawyers harping on the school’s inconsistency of its testing rules is serious. It feels like a warning that a school can’t claim its anti-cheating provisions are important if they don’t use them all the time. Hard to argue that. By allowing wide professor flexibility, CSU may have buried themselves.
If they had a clear policy that said remote tests require a proctor and room review and if they got permission from online students, it feels very unlikely the student would have prevailed here. CSU said no student had ever objected to the pre-test camera pan.
As such, the lesson for schools and other test providers is not to drop remote scans but to be sure their policies are clear and consistently followed.
Finally, if schools do stop remote test setting scans, they will set an unequal test regime. Tests in classrooms or in test centers include room scans - always, by their very nature. If students cannot post notes to their walls in a test center but can during their online exams, that’s a serious problem. It would undermine online testing entirely. I do not see how any school could allow that.