by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
Online exam proctoring services are rapidly expanding in both use and advertising for their services. As distant education soars, particularly during this seemingly never ending pandemic, and the need to deter academic misconduct during online exams is only getting trickier - why not subscribe and use this helpful tool? Well, under the category that “all that glitters isn’t gold” warning - this online proctoring is in its infancy. It’s not that legal problems lurk around EVERY CORNER - but, it will be interesting to see how all this plays out.
Here are some of the problems that no one has yet totally addressed:
What about privacy concerns? You know some college students are minors. In Texas, if you are under 18 - you are considered to be a child. Can that freshman who is 17 (or maybe even 16) actually assess her/his privacy concerns and waive any concerns that may exist when another adult peers through their webcam at them? And just what are those concerns? Must we deal with mom and dad? FERPA keeps good old mom and dad from peering into the private world of education of their adult (18 and over) son or daughter. But guess who is paying tuition and who may not be excited by some remote proctor staring at their daughter in an active surveillance scenario through their daughter’s webcam?!
What about disabled students with neuromuscular disorders, vision impairments or other disabilities? They may, because of their disabilities, be at a greater risk to be flagged as concerns when taking tests? Ahhh - the unending legal questions we must address when making sure disabilities are not singled out for unusual treatment - which some may want to call discrimination!
Who proctors the proctor? Ok AI helps, but live proctors are still the norm - what happens when the proctor goes rogue? And how would you even know IF the proctor goes rogue?
What happens to you - the professor/instructor/teaching assistant - when something goes wrong with proctoring? Who is to ultimately be blamed? What if the proctoring service you choose uses software that is virus infected and causes lots of damage? What happens when you require a certain vendor for your students to use - and something happens that should NEVER happen? Do you refer all complaints to your college? Do you get your university to make those decisions about which vendor to use before using them?
There are more and varied forms of all of these questions that are starting to haunt legal professionals. So, what do you do? Do you just eschew online test proctoring? It’s up to you - but if you use it, ask a bunch of questions first. Talk with the legal counsel for your employer and find out what happens if the unimaginable should occur.
New techniques, helpful ones, like online proctoring have really good advantages - but before jumping all in - be informed, be vigilant and don’t be afraid to get help.
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”