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     A. School Law

          2. Civil Rights

 

Missouri's Strip Search Statute Addresses First and Fourth Amendment Concerns

 

Missouri's Strip Search Statute provides some protections to students at public school and charter schools that address the right to freedom of speech, the right to free exercise of religion, and the right to be secure against unreasonable searches and seizures.

 

Text of the Missouri Strip Search Statute

Paragraph 1 of the Missouri Strip Search Statute provides that, with few exceptions, "no employee of or volunteer at any public school or charter school within this state shall perform a strip search . . . of any student of any such school." § 167.166.1 R.S.Mo. Paragraph 7 of the statute generally prohibits school officials "to remove an emblem, insignia, or garment, including a religious emblem, insignia, or garment . . . ." § 167.166.7 R.S.Mo. The statute also provides that if a strip search occurs at school, the district must attempt to notify the searched student's parent or guardian as soon as possible. § 167.166.4 R.S.Mo.

 

"Strip Search" Defined

According to the statute, a "strip search" is "the removal or rearrangement of some or all of the clothing of a person so as to permit an inspection of the genitals, buttocks, anus, breasts or undergarments of such person, including but not limited to inspections conducted visually,  manually or by means of any physical instrument." § 544.193.1(2) R.S.Mo. So, even a rearrangement of some clothing to expose a student's undergarments can constitute a prohibited strip search.

 

Exceptions to the Prohibition on School Strip Searches

The statute does contain some exceptions which allow strip searches to occur at school. First, strip searches may be conducted by, or under the authority of, a commissioned law enforcement officer." § 167.166.1 R.S.Mo. Second, a school employee may strip search a student, but "only [1] if a commissioned law enforcement officer is not immediately available and [2] if the school employee reasonably believes that a student possesses a weapon, explosive, or substance that poses an imminent threat of physical harm to himself or herself or another person." § 167.166.2 R.S.Mo. Third, the term "strip search" does not apply to "the removal of clothing in order to [1] investigate the potential abuse or neglect of a student; [2] give medical attention to a student; [3] provide health services to a student; or [4] screen a student for medical conditions." § 167.166.3 R.S.Mo.

 

Consequences for Illegal Strip Searches

The Missouri Strip Search Statute provides mild consequences for school employees who violate the statute, but federal law might allow for more serious remedies. Under the statute, any employee of a public school or charter school who performs a strip search in violation of the statute will be suspended without pay pending the completion of a hearing or other due process. § 167.166.5 R.S.Mo. Under federal law, however, a student whose constitutional rights are violated in a strip search might have a cause of action under the Civil Rights Act.

 

First Amendment Concerns

The Strip Search Statute also states: "No employee of or volunteer in or school board member of or school district administrator of a public school or charter school shall direct a student to remove an emblem, insignia, or garment, including a religious emblem, insignia, or garment, as long as such emblem, insignia, or garment is worn in a manner that does not promote disruptive behavior." § 167.166.7 R.S.Mo. This provision addresses First Amendment concerns regarding both the freedom of speech and the free exercise of religion.

 

From time to time, a news story arises somewhere in the country about a school where a student is prohibited from, for example, displaying a religious insignia or making a political statement. The Supreme Court of the United States has ruled that students have First Amendment rights at school that can be violated by such school actions. Paragraph 7 of the Missouri Strip Search Statute attempts to codify Supreme Court case law.

 

Promoting Disruptive Behavior

A federal case arising out of a public school in St. Francois County in Missouri illustrates when political emblems can be suppressed at school without violating the Strip Search Statute. In B.W.A. v. Farmington R-VII Sch. Dist., 554 F.3d 734 (8th Cir. 2009), the school district was experiencing real, severe racial tension and decided to ban students from wearing the Confederate flag. A student wore apparel with the Confederate flag on two consecutive days, and he was suspended.

 

The student sued the school district and argued, among other things, that the district had violated the Strip Search Statute by directing him to remove the apparel on which the Confederate flag appeared.  The court, however, sided with the school district because school officials could have reasonably determined that the prominent display of the Confederate flag emblem in the school environment at the relevant time was done in a disruptive manner. Under the circumstances, the district's actions satisfied both the Tinker standard and the Strip Search Statute.

 

Contact a School Law Attorney

The Missouri Strip Search Statute is intended to be a solid protection of students' constitutional rights. However, the statute is effective only if school officials follow it. If you believe that your child has been strip searched illegally or that his or her First Amendment rights have been violated, you might want to consider contacting a school law attorney. A school law attorney can determine whether or not a violation has occurred and can advise you on what, if any, recourse to take.

Daniel J. Rhoads, St. Louis School Law Attorney

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