Freedom of speech in the public employment arena presents a double-edged sword; on the one hand, freedom of speech is one of the most cherished values that undergirds the proverbial marketplace of ideas in a university setting but can also cause a public university to wade into a thicket of unsettled case law when it comes to denying tenure or otherwise undertaking any type of adverse employment action against an outspoken faculty member.

A major defense available to most public employers in a First Amendment retaliation case is the so-called “Garcetti defense.” In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court held that when public employees engage in speech as part of their official duties, such speech is not protected by the First Amendment. This happens, for example, when a high school department chair makes an internal complaint about school curriculum. See Schulz v. Commack Union Free Sch. Dist., No. 21-CV-5646-RPK, ––– F.Supp.3d ––––, ––––, 2023 WL 2667050, at *7 (E.D.N.Y. Mar. 28, 2023).[1]

 

Read More >> A Case of First Impression in the Second Circuit: Court Rules Garcetti Defense Not Applicable to Professor’s Claim of Academic Freedom

In 2006, the Supreme Court’s decision in Garcetti v. Ceballos granted public employers’ broad discretion in regulating their employees’ work-related speech.[1] Before 2006, under the so-called Pickering Connick test, employees who were speaking as citizens about “matters of public concern” were only subject to limited restrictions when the government employer’s interest in effective workplace operations outweighed the employee’s free speech rights.[2]

Read More >> The De-Evolution of Post-Garcetti Public Employee Speech Regulation in Higher Education

In a decision issued last week, the U.S. District Court for the Northern District of Ohio ruled that a public institution conducted an unreasonable “search,” in violation of the Fourth Amendment to the United States Constitution, by performing a visual inspection of a student‘s remote testing location prior to an online exam.

As is customary, the institution in question (Cleveland State University) reserved the right to employ a variety of safeguards designed to ensure integrity in online academic exercises. Among other things, the University provided instructors discretion to require students to show their surroundings via webcam before, during or after an exam, in order to demonstrate that they were not using prohibited resources or assistance. The student in question was scheduled to take a chemistry examination and was notified approximately two hours prior to the start of the exam that the proctor would be checking his surroundings by visual observation. The proctor did so at the start of the exam, asking the student to perform a room scan that lasted “less than a minute, and as little as ten to twenty seconds.” The student complied with the request, but subsequently sued the University claiming that he had “confidential settlement documents” in the form of IRS forms 1099 in his room that could not be secured prior to the examination (the proctor testified that she did not see any tax documents during the room scan).

In a somewhat surprising decision, the court held that the room scan was an unreasonable search in violation of the Fourth Amendment. Under applicable precedent, whether a particular search is reasonable “is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests."¹ While acknowledging the University’s interest in ensuring academic integrity, the court nevertheless found the room scan requirement to be unreasonable, among other reasons because the instructor announced the requirement after the start of the course (theoretically leading the student to believe he would not be subject to a room scan until shortly before the time of his test), and because other students could see the room scans. The court also expressed skepticism that the room scans would be effective in preventing cheating, and asserted that the University had other procedural safeguards available to guard against cheating, such as “employing proctors to monitor for suspicious movement or using proctoring programs that perform functions like preventing students from accessing the internet or other programs during the test, recording students during tests, and using artificial intelligence to detect suspicious movement or plagiarism.” With apparent disregard for pedagogical considerations and academic freedom, the court also noted that alternatives to tests, such as projects or papers, might minimize or eliminate the need for remote room scans. In consideration of these factors, the court determined that the student’s privacy interests outweighed the University’s interests in enabling the proctor to view his room and concluded that the room scan was unconstitutional.

This decision is perplexing on many levels, most significantly in that it apparently reflects a determination that conducting a visual inspection of the testing environment for as little as ten seconds after having given a student two hours’ advance notice to secure items he did not wish to be viewed, in the interest of academic integrity, was unreasonable. That said, the likely impact of this decision outside its immediate context, if any, is questionable. For example, it should have no impact on private institutions, and much of the court’s reasoning seems to have revolved around the specific facts of the case, including a perceived lack of consistency in messaging to students as to whether room scans would be required, and the degree of advance notice provided to students. It is possible, and perhaps even likely, that early and consistent messaging in this regard, including timely guidance to students that they should secure any items they do not wish to be viewed, will protect against similar results in other contexts.

If you have any questions, please contact Philip Zaccheo, any attorney in Bond's higher education practice or the Bond attorney with whom you are regularly in contact.

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^{1  Skinner v. Railway Labor Execs.' Ass'n, 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979))}

Case: CAMPINHA-BACOTE v. BLEIDT (S.D.Tex. 10-3-2011) What allegedly happened: A he-said / she-said case. A university professor (who has since resigned) claimed that he was authorized to use a 25 page survey, owned by the plaintiff in this case, on classes of incoming students for a certain period of time. On the other hand, plaintiff claimed that there was no authorization for the use of the survey by the "main defendant professor" and one of his co-workers. Most of the claims originally present in this case were dropped on sovereign immunity grounds because defendant are a state university, specifically Texas A&M's pharmacy college and a couple of its professors.* The defendants have also raised the defense of fair use of the survey (as will be discussed below), but the court's October 3rd opinion only deals with the issue of whether plaintiff authorized the defendants' use. Decision: The issue of whether there really was authorization to use the survey must be decided through a trial. Strategy Question: The short opinion mentions a license offer made by the copyright owner to one of the defendant professors:

[The author of the survey] responded that the cost would be $735 for 2010, and asked for documentation of the prior agreement with [the university professor]. The pharmacy school decided against using the survey during August 2010 orientation at least in part because it was too expensive.

The relevance of this $735 offer is not immediately clear, especially because the court was deciding a summary judgment motion on liability, and not deciding any damages issues.  The $735 figure was made by the copyright owner in the context of licensing and authorizing future use and did not directly relate to the unauthorized use at issue in this case, which had occurred prior to the $735 offer.** It may be that the court believed that the university, or the involved professors, could have settled this matter early by paying about $735 per semester of allegedly unauthorized use, but, if so, that may or may not be a realistic assumption. Fair Use: In disputes over copyrighted materials that are used for educational purposes, fair use is frequently raised as a defense.  Indeed, fair use has been raised, but not yet litigated, in this case. Some of the plaintiff's recent briefing shows that she continues to be concerned about this defense:

In an email dated as recent as September 16, 2010, [the main defendant professor] communicated with [a dean of the university], whereby he made mention of and implications that his use . . . of Dr. Campinha-Bacote’s survey was protected by fair use. . . . The second factual issue is that the College's fair use of a copyrighted survey instrument should not be much of an issue. There was no data collected for analysis purposes or for use in research; any use was for a nonprofit-educational purpose only. Apart from the fact that [the main defendant professor] actually uses the term “fair use,” he also identifies what he thinks the relevant fair use factors are by mentioning “nonprofit” and “educational purposes.” By this statement, it is clear that [the main defendant professor] has knowledge of the fair use doctrine. Consequently, it can be reasonably inferred that [the main defendant professor] is under the impression that his use, both in the past and in the future, would be protected by the “fair use” doctrine. Accordingly, Defendants are more likely to continue using Plaintiff’s tool if they are under the impression that such use is protected. Without an Order from this court granting Plaintiff her injunctive relief, Defendants will be free to use Dr. Campinha-Bacote’s surveys without paying a fee.

Footnote(s): *  More specifically, the claims against the university, and against the professors "in their official capacities" were dropped, leaving only claims against two of the professors in their non-official capacities.  The opinion does not specify as to whether the university has a continuing duty to defend the professors against the remaining claims that were not found to be amenable to summary judgment. **  It is not clear whether the copyright owner even knew about the allegedly unauthorized use at the time she made the $735 license offer.