Office of General Counsel
University of Central Missouri 208 Administration Building
Warrensburg, MO 64093
660.543.4730
ogc@ucmo.edu
September 2022
Ohio Court Issues Limited Decision Regarding Student Privacy and Online Testing
A district court opinion from Ohio is getting a lot of media attention as it is the first of its kind to speak to a student’s right to privacy during online test proctoring. The decision sets no legal precedent in Missouri and remains subject to appeal in Ohio; however, it provides interesting fodder for discussion.
The Fourth Amendment of the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” Plaintiff Aaron Ogletree, a student at Cleveland State University during the spring 2021 semester, brought a Fourth Amendment challenge after the proctor for an online chemistry exam required him to display his surroundings in his bedroom on camera to promote the integrity of the testing process.
Plaintiff alleged that his family circumstances during the pandemic made his bedroom his only suitable testing space and that because he received short notice of the required room scan, he was forced to display confidential documents that he did not
have time to secure. Ruling in favor of Mr. Ogletree, the court first held that a room scan is a search within the meaning of the Fourth Amendment. The court then held under the “special needs” doctrine that although the University has a legitimate interest in academic fairness and integrity, it was outweighed in this case by the plaintiff’s asserted expectation of privacy in an area of the home where that expectation is at its highest, particularly in light of what the court found to be a lack of argument or evidence that room scans are the only or most effective means to combat cheating on remote exams.
It’s critical to note that the Ogletree decision was fact specific, relying in part on the following findings of the court: Cleveland State would not allow this particular student to take tests on campus at the time in question; the plaintiff was informed less than two hours before the test that the room scan would be occurring; plaintiff had tax documents and medications in his bedroom that he did not have opportunity to relocate prior to the exam; Cleveland State required him to take the test in a room with no other
OFFICE OF GENERAL COUNSEL LEGAL BULLETIN TEAM Lindsay A. Chapman General Counsel Nnamdi C. Nnedu Assistant General Counsel Jeffrey A. Robinson Director of Contracts, Compliance, and Risk Management Julie K. Schlueter Legal Administrative AssistantFeatured FAQ
Q: How does the University handle open records requests?
A: UCM is not subject to the federal Freedom of Information Act. We are subject to Missouri’s Sunshine Law, which requires open meetings and the availability of open records as set forth in Chapter 610 of the Revised Statutes of Missouri. UCM’s Custodian of Records for Sunshine purposes is housed in the Office of the President. All requests should be submitted via email to sunshinelawrequests@ucmo.edu.
The Missouri Attorney General’s office provides the public with resources on Sunshine Law and provides an avenue for complaints related thereto. More information from the AG’s office is available at ago.mo.gov/Missourilaw/sunshine-law
people and his bedroom was the only room that fit due to his family’s presence in the home. Further, the Court reasoned,
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.
[But,] because of the pandemic, such choices were not available [to Mr. Ogletree].
As a public institution, UCM is bound by and honors the Constitution, including the Fourth Amendment. We value student privacy, and we also value academic integrity and support reasonable efforts to secure testing environments. Some practical takeaways from the Ogletree case could include:
• Require room scanning and other security measures only where they make sense and provide true value. For example, if it’s an open book exam, scanning seems unnecessary.
• Inform students of online testing requirements, including whether a room scan will be required, as soon as practicable—preferably in the syllabus.
• Provide students with the privacy policies of any proctoring software applications used.
• Remind students that they may take online tests at a place of their choosing; they are not required to take them from home.
• When scanning or other video proctoring is used, remind students ahead of time of such and point out to them that they can prepare their testing location ahead of time to remove any items they don’t want seen on camera.
• Provide in-person or other oncampus testing site alternatives when practicable.
About this Publication:
This newsletter provides practical information. It is not a substitute for legal advice. Laws, regulations, and policies frequently change, and the provision of legal advice requires careful consideration and application of relevant facts. UCM’s Office of General Counsel represents the University and those acting on its behalf in all University matters. We can be reached at 660.543.4730 or ogc@ucmo.edu.
OFFICE OF GENERAL COUNSEL LEGAL BULLETIN August 2021
A New Era in College Athletics – Name, Image, and Likeness Compensation
Lindsay A. Chapman General Counsel Jeffrey A. Robinson Director of Contracts, Compliance, and Risk Management Julie K. Schlueter Legal Administrative AssistantCollege athletes have long been prohibited by the NCAA from profiting off their own names, images, or likeness (“NIL”). That all changed effective July 1, 2021. Student-athletes are now free to capitalize on their athletic affiliations to ink endorsement deals, engage in paid autograph sessions, monetize their social media feeds, and otherwise obtain compensation related to their NIL without being deemed ineligible by the NCAA.
Beyond the traditional clothing sales and tv commercials we all think of, student athletes are now free under applicable rules to create sports camps, offer private coaching sessions, or start other businesses that leverage their athlete status as a marketing tool. Use of Instagram and other social media accounts to endorse or otherwise showcase products is likely to be the most common NIL activity.
Office
of General CounselUniversity of Central Missouri 208 Administration Building
Warrensburg, MO 64093
660.543.4730
ogc@ucmo.edu
Although the NCAA has long prohibited such NIL activities, the rule change came swiftly after the June 21, 2021, U.S. Supreme Court decision in NCAA v. Alston and American Athletic Conference v.
Alston, where the court unanimously rejected the NCAA’s arguments that it should be exempt from the antitrust laws that normally prevent businesses from restricting compensation.
This does not mean it’s now a freefor-all. At the national level, multiple bills with bipartisan support are pending that would govern athlete NIL compensation and impose requirements on universities related thereto. At the state level, applicable rules vary greatly. We have a new Missouri law effective August 28, 2021, that protects studentathletes’ right to earn compensation from NIL activities but imposes certain restrictions. The Missouri law prohibits state employees, including University employees, from compensating student-athletes.
NIL is a broad topic with new endeavors and nuances popping up every day. This article is intended to make University faculty and staff aware of what we need to know as state employees. We offer the following FAQs to guide UCM employees so that we don’t jeopardize athlete eligibility.
TEAM:
Featured FAQ
Q: Who can use the services of the Office of General Counsel?
A: The University is our client, and it is to the University that we owe the duties of loyalty, confidentiality, and advocacy. Any UCM administrator or employee who is acting on behalf of the University is, in that capacity, an agent of the University and therefore a personification of our client. Thus, we serve hundreds of individuals and we advise and represent them as they work to administer the affairs of UCM in pursuit of its mission. We must be cognizant of possible conflicts of interest within the organization to ensure that we are always serving and protecting the interests of our client, the University.
We cannot give legal advice for personal matters. The Missouri Bar Association provides referrals for personal legal services at missourilawyershelp.org.
Q: May a UCM employee hire a student-athlete for NIL activities?
A: No. You may not engage an athlete from any Missouri institution of higher ed in this way, as the new state law states a University employee “shall not compensate or cause compensation to be directed to a student athlete, a prospective student athlete, or the family of such individuals” for NIL activities.
Q: If a UCM employee owns a separate business outside of their University employment, can their separate business hire the athlete for NIL activities?
A: No, this is also prohibited by state law. Similarly, payment cannot be directed to a company owned by the athlete to avoid the Missouri law.
Q: I’m employed at UCM but I’d like to purchase NIL products a student-athlete is selling, such as t-shirts with their picture on it. May I do that?
A: No. Purchasing a product sold by a student-athlete would violate the new state law as it is compensating a student-athlete.
Q: What if I pay them in food or other non-cash ways? Is that allowed?
A: No. State law prohibits both cash payments and in-kind payments to student-athletes by state employees.
Q: I am a licensed accountant/ attorney/agent. May I advise a student athlete in that capacity?
A: No, regardless of whether your role at UCM involves that license.
For more information or to discuss a specific scenario, please contact Kathy Anderson, Senior Associate Athletic Director for UCM Athletics Compliance.
About this Publication:
This newsletter provides practical information. It is not a substitute for legal advice. Laws, regulations, and policies frequently change, and the provision of legal advice requires careful consideration and application of relevant facts. UCM’s Office of General Counsel represents the University and those acting on its behalf in all University matters. We can be reached at 660.543.4730 or ogc@ucmo.edu.
OFFICE OF GENERAL COUNSEL LEGAL BULLETIN September 2020
Election Season as a State Employee
TEAM:
Lindsay A. Chapman General Counsel Danelle Reid Associate General Counsel/ Director of Accessibility Services Jeffrey A. Robinson Director of Contracts, Compliance, and Risk Management Julie K. Schlueter Legal Administrative AssistantCampaign season is here again. It’s everyone’s right to speak out on matters of public concern and to fully participate in the political process, including election campaigns. Individuals do not lose those rights when they accept employment with a state agency, such as the University of Central Missouri. But we State of Missouri employees are subject to reasonable prohibitions on using public property or facilities, the name of a public institution, government time, or the influence and authority we have because of our positions. This is because a state agency may not support partisan causes or candidates for elected office, and therefore as state employees we may not use our work time or university resources to do so. The rules take into account individual rights as well as the rights
of the diverse tax-paying public that supports UCM, including our individual salaries and benefits.
The key is to maintain a clear separation between individuals as private citizens and individuals as state employees, between personal property and state property, and between personal expression and University expression. That may look different depending on your position within UCM. For example: campaign buttons. A faculty member wearing a campaign button on campus would not be viewed as representing the University, but the same could not be said of the University President. And employees who must meet a certain dress code when working may be prohibited from wearing any nonUCM buttons, including campaign buttons.
ogc@ucmo.edu
Featured FAQs
Q: Does UCM have a free speech zone designated for outdoor demonstrations or other free expression?
A: No. All of campus is a freespeech area. We do have outdoor spaces on campus that are reservable for gatherings and are conducive to speaking events, but that does not mean expression is not allowed in other areas of campus.
Because we are a public campus where people are generally free to travel, the University cannot restrict speech—including demonstrations—to a particular area though we may impose content-neutral rules to prevent the disturbance of the regular academic or administrative functions of the University. Lawful contentneutral rules typically consist of reasonable time, place, and manner restrictions.
For example, here at UCM, although registration of outdoor public speech events is not required, use of a sound system must be approved in advance to ensure classes or other University events are not disrupted.
Holiday Décor and the First Amendment
As the weather grows colder, we frequently get questions about the propriety of certain holiday decorations in offices and elsewhere on campus. People want the freedom to express their holiday enthusiasm, which sometimes includes religious beliefs and symbolism. Under the Free Exercise Clause the University, as a governmental agency, may not prohibit the free exercise of religion. On the other hand, under the Establishment Clause the University may not endorse religion, either of a particular variety or in general. These rules are intended to guarantee freedom of religion (which includes freedom from religion) for all.
Caselaw has addressed the inherent tension between rights of free religious expression and the Establishment Clause. We analyze the questions we receive using this caselaw. Here are some of the questions we have addressed at UCM, along with our answers:
Q: There are decorated Christmas trees in different places all over campus. This seems like a show of University support for a Christian holiday. Is this allowed under the Establishment Clause?
A: Yes. Christmas trees are considered by the courts to be secular symbols. The same goes for Santa Claus, reindeer, candy canes, and the like.
Q: What about nativity scenes? Are they the same as Christmas trees?
A: No. Nativity scenes are generally considered to be religious symbols. Where and how they are
displayed can make a difference as to whether they are permitted under Constitutional law. If a nativity scene is displayed in a public area on campus standing by itself and without a particular secular purpose, it could appear to be an endorsement of religion by the University. But if it is displayed together with secular symbols as a general celebration of the season, or in an art gallery, architecture studio, or history exhibit for pedagogical purposes, it would likely be allowed under the law. If a professor wears a nativity scene charm on a necklace, or the depiction of one on a t-shirt, that would generally be allowed as a personal expression. If, on the other hand, a professor or other University employee includes a religious holiday message in official correspondence, or on the chalkboard during lectures (without a course-related purpose), that would likely be considered expression under the auspices of the University in violation of the Establishment Clause.
Q: The person in the front reception area of my office has an Easter bunny on her desk. Is that all right?
A: Yes. An Easter bunny is not considered a religious symbol, and in any case, its placement on an individual’s desk usually does not indicate a message or endorsement of any kind by the University.
About this Publication:
This newsletter provides practical information. It is not a substitute for legal advice. Laws, regulations, and policies frequently change, and the provision of legal advice requires careful consideration and application of relevant facts. UCM’s Office of General Counsel represents the University and those acting on its behalf in all University matters. We can be reached at 660.543.4730 or ogc@ucmo.edu.
Lindsay A. Chapman General Counsel
Danelle Cord
Associate General Counsel/ Director of Accessibility Services
Jeffrey A. Robinson Director of Contracts, Compliance, and Risk Management
Julie K. Schlueter Legal Administrative Assistant
