I have some issues with what this professor is doing. I can’t imagine a judge is going to be very sympathetic once he finds out this professor is only filing a lawsuit in order to find out the students’ identities and plans on dropping the lawsuit once he discovers that. Rule 3.1 of the ABA’s Model Rules of Professional Conduct says that, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . . .” The official comment on this rule says that “The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” Now, to me, this seems like an abuse of legal procedure, since he has no intent on following through with the lawsuit. I suppose it’s arguably not for a frivolous purpose, but it seems like abuse of legal procedure to me.
Also, the school could have prevented this. The exam in question was given while the school had gone remote because of COVID. If the exam had been in person in a proctored environment, the students couldn’t have posted the exam and asked for help during the exam, which is what happened. I’ve been in law school all through COVID. I’ve taken many online exams from home in my classes, which are all graded on a curve. We use Examsoft to take the exams, and that software forces all other applications on your computer to be shut down before the exam starts, and won’t let you swap out of the software to launch another program, like a web browser, during the exam. The exams are also proctored. We have to keep our webcams on throughout the exam. Before the exam starts, we have to do a 360 recording of our test environment to show that there isn’t another computer in the room, or other people. And then we’re recorded throughout the exam, and that video is uploaded along with the exam when we’re done. States that administered remote bar exams during lockdowns did the same thing. If this school had done this, and any students cheated, the school would be able to review those videos to discover their identities without the professor filing an arguably frivolous lawsuit. I don’t like students cheating, but I don’t like what this professor is doing, either. Both are unethical.
It sounds like your issue is with this professor’s lawyer, not with the professor himself; as it is the lawyer who is bound by the ABA code of ethics. However, I think trying to shut down a commercial exam cheating operation is hardly “frivolous”.
As for remote proctoring services, they are expensive, and many campuses (like mine) opted not to license one. Also, there are privacy concerns connected to them, and ExamSoft in particular has had technical issues. The functionality you describe above, taking over your computer, is fairly similar to what malware does. I wouldn’t run it on one of my machines, and so wouldn’t ask my students to do so either.
The professor is also a lawyer. He’s not representing himself here, but he’s still bound by whatever professional ethics codes apply in his state. As far as it not being frivolous, I said it was arguably not frivolous. I think it arguably is, also, especially because he has no intention of following through on the lawsuit. So while it might not be frivolous from his viewpoint, it may be frivolous in the eyes of the court, because it is a waste of their time and resources.
I totally get your concerns with the software and privacy issues. I have them as well. I wasn’t given an option. It was that, or drop out of law school. They also, by the way, use Examsoft even on in person exams. All of our tests are taken on computer, even if the tests are in person. My school has a very good IT department, so we haven’t had many technical issues, although they usually tell us before exams to not install the most recent update to MacOS, if there has been a recent update, because Examsoft usually doesn’t update their software until well after a new version of MacOS is released. Which is annoying. Anyway, if you’re going to do exams by computer, or remote exams, I don’t see any other way to do that fairly. If you don’t do something, some students are going to cheat. It sucks, but people suck. And when you have scholarships tied to grades, which many schools do, tolerating cheating is not fair to the students who don’t cheat. Sure, we could do away with grading, and do something completely different, but that’s just not a realistic outcome at most schools anytime in the near future, and those changes can’t be made by individual professors. In law school especially, the current way of doing things is so entrenched that it’s going to take years to make even modest improvements in how things are done. And there are a lot of problems with the current state of how things are done in law schools, and grading is probably not in the top 10 on the list. #1 is probably the LSAT and the admissions process.
The real mystery is why course hero isn’t illegal itself or isn’t taken down by text book publishers whose copyrighted content makes up the majority of what course hero is selling.
Thanks for all the details about remote proctoring! We’ve dealt with similar challenges in my field due to COVID, and your example is way better a solution than any of our certifying bodies have come up with.
You raise two interesting points. Rather than quote your whole comment, I’ll just say this.
1 - Lawsuits filed for this kind of purpose—to discover the identity of some malefactor—are absolutely within the bounds of accepted practice. We’re used to thinking of lawsuits as machines that turns grievances into $$$, but really they’re just ways to harness the coercive power of the state in what would otherwise not be the state’s business. That can mean “X pays Y money,” it can mean “X is required to observe the terms of its contract with Y,” and in this case it can mean “X is required to give Y information it has about Z.” When you say “frivolous” or “abuse,” those mean certain things to lawyers that are a mile away from this.
2 - The technical issues with lockdown browsers are legion, and that’s in the rare cases where they’re not trivially circumvented by a halfway clever student. (You can’t design something to act like malware without making malware, and the reason malware is famously buggy isn’t because the teenager in Minsk who made it can’t code; it’s because it’s trying to work around a thousand different variations of OS and architecture to make a computer do something it’s not designed to do, or in some cases designed NOT to do.) That’s before you get into the very, very, very consequential problems around how different humans react differently to intrusive surveillance in their homes, or who has access to the brand-new hardware that will run the lockdown browser perfectly when it matters most, etc. Basically, they take all the structural inequalities in higher ed and put them on meth.
I teach at a university. I know there are problems around this, on both ends—it’s not just evil students cheating, it’s a system that almost seems to have been designed to force them into that kind of cynical choice. Every semester, I coax and plead and threaten my students not to cheat. I get into the ethics of it. I get into the practicality of it. I show them how much easier it is to pass without cheating. And doing that song and dance reduces cheating a lot, but not to zero. How much of what remains is still my fault? For writing exam questions that are temptingly easy to Google, for reusing a question from 12 years ago, for participating in the inherently problematic practice of grading in the first place? I don’t know. The one thing I’m sure of is that lockdown browsers and other techno-surveillance-regime approaches solve the problem of academic dishonesty less well than bitcoins solve structural problems in the world economy.
(I know you weren’t really cheerleading any of this stuff so this isn’t aimed at you; I just wanted that on the record.)
I understand that, but I don’t think what’s happening here is that. That is usually the plaintiff sues unknown party A, and then gets the court to issue a subpoena to party B to reveal the identity of party A so that the lawsuit against A can proceed, whatever that means, which could be seeking damages, an injunction, a settlement, whatever. Here, what’s happening is that the plaintiff is suing unknown parties A (the students) so that he can get the court to issue a subpoena to party B (the website) to reveal the identities of parties A, at which point he will drop the lawsuit because all he wants is their identities so that he can refer them to the University for disciplinary action. That, to me, does not seem like an appropriate use of the court’s already overloaded resources.
Yeah, I mean … if I could I would completely tear down the legal education system as it is today and rebuild it. The whole thing is flawed. The LSAT as an entrance exam is insane. The rest of the admissions process isn’t much better. Law school classes are an antiquated mess. I mean, they’re mostly still using the Socratic Method. There’s a reason other education programs don’t use that method anymore. And then, after you make it through all that mess, here comes the bar exam, which law school barely prepares you for, so now you have to shell out a few thousand more bucks for a bar prep course. And absolutely none of that, not the LSAT, not law school, not the bar exam, teaches you how to actually be a lawyer, or ensures that the people who become lawyers will be good ones. The system is mostly designed to ensure that most attorneys in the US are rich white dudes, and it’s pretty effective.
“What he’s trying to do is prevent cheating and have a chilling effect on students cheating going forward.”[…]
Also:
Berkovitz’s motivation is more nuanced than just holding students accountable forcheating on his exams, his attorney said. Because Chapman’s business school grades students on a curve, anyone who cheated and may have received a higher grade possibly affected the curve for students who followed the honor code and received a lower score.
Both of his stated goals are great, but not going to be addressed by the lawsuit itself, which seems intended only to compel the website to give up the students’ names.
I bet you he doesn’t own the content of his classes. I bet it’s owned by the university. He will have no standing if that’s the case. We had a similar issue in my graduate program and never thought anything about asking past classes for the tests to use for studying. The professor found out and then gave everyone a 100% because he didn’t explicitly say we couldn’t do that as he returned the tests to us. After he determined we were using previous tests he would let us look at the tests after grading and we had to return them.
