EdLawConnect Blog

The Fourth Amendment to the United States Constitution protects the rights of the people against unreasonable searches and seizures of their person, property, and home.  A recently-decided federal court case has explored the application of this important constitutional right to an emerging technological tool employed by schools and institutions of higher education: at-home examination proctoring.  The holding in the case (Aaron M. Ogletree v. Cleveland State University) could provide insight into how similar cases may be decided across the United States.

Education institutions face a number of challenges as they gear up for and start the 2022-2023 school year including, but not limited to, lack of adequate staffing in a number of departments.  These staffing shortages are common in technology departments, where staff and resources have been spread thin trying to meet the increased technology demands of remote workforces, virtual learning by students, and ever changing instructional technology.  To this landscape, the threat of cyberattacks is added.

On June 23, 2022, the U.S. Department of Education (U.S. DOE) issued for public comment proposed amendments (“Proposed Amendments”) to the regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”). Title IX, a federal statute that prohibits discrimination on the basis of sex by recipients of federal funding, specifically provides:

While employers can realize significant time savings or improvement in the hiring process by implementing technology, employers must ensure that the selected technology is designed and implemented in a way that prevents discrimination based on protected classes such as disability, race, sex, national origin, color, or religion.  Employers may be responsible for violations of the Americans with Disabilities Act (ADA) and/or the Fair Employment and Housing Act (FEHA) even if the discrimination is not intentional or the technology was developed by an outside vendor.