Law & Courts

Dissent: Ruling Teaches Johnny the Wrong Lesson

June 02, 1999 4 min read

JUSTICE ANTHONY M. KENNEDY, joined by CHIEF JUSTICE WILLIAM H. REHNQUIST, JUSTICE ANTONIN SCALIA, and JUSTICE CLARENCE THOMAS, delivered a dissenting opinion:

... The majority’s opinion purports to be narrow, but the limiting principles it proposes are illusory. The fence the court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion. The potential costs to our schools of today’s decision are difficult to estimate, but they are so great that it is most unlikely Congress intended to inflict them.

The only certainty flowing from the majority’s decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer-harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them. The nation’s schoolchildren will learn their first lessons about federalism in classrooms where the federal government is the ever-present regulator. ...

Title IX ... gives schools neither notice that the conduct the majority labels peer “sexual harassment” is gender discrimination within the meaning of the act nor any guidance in distinguishing in individual cases between actionable discrimination and the immature behavior of children and adolescents. The majority thus imposes on schools potentially crushing financial liability for student conduct that is not prohibited in clear terms by Title IX and that cannot, even after today’s opinion, be identified by either schools or courts with any precision. ...

In reality, there is no established body of federal or state law on which courts may draw in defining the student conduct that qualifies as Title IX gender discrimination. Analogies to Title VII hostile-environment harassment are inapposite, because schools are not workplaces and children are not adults. The norms of the adult workplace that have defined hostile-environment sexual harassment are not easily translated to peer relationships in schools, where teenage romantic relationships and dating are a part of everyday life. Analogies to Title IX teacher sexual harassment of students are similarly flawed. A teacher’s sexual overtures toward a student are always inappropriate; a teenager’s romantic overtures to a classmate (even when persistent and unwelcome) are an inescapable part of adolescence. ...

The majority seems oblivious to the fact that almost every child, at some point, has trouble in school because he or she is being teased by his or her peers. The girl who wants to skip recess because she is teased by the boys is no different from the overweight child who skips gym class because the other children tease her about her size in the locker room; or the child who risks flunking out because he refuses to wear glasses to avoid the taunts of “four eyes"; or the child who refuses to go to school because the school bully calls him a “scaredy cat” at recess. Most children respond to teasing in ways that detract from their ability to learn. The majority’s test for actionable harassment will, as a result, sweep in almost all of the more innocuous conduct it acknowledges as a ubiquitous part of school life. ...

The majority’s limitations on peer-sexual-harassment suits cannot hope to contain the flood of liability the court today begins. The elements of the Title IX claim created by the majority will be easy not only to allege but also to prove. A female plaintiff who pleads only that a boy called her offensive names, that she told a teacher, that the teacher’s response was unreasonable, and that her school performance suffered as a result, appears to state a successful claim. ...

The prospect of unlimited Title IX liability will, in all likelihood, breed a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment. It would appear to be no coincidence that, not long after the [Department of Education] issued its proposed policy guidance warning that schools could be liable for peer sexual harassment in the fall of 1996, a North Carolina school suspended a 6-year-old boy who kissed a female classmate on the cheek for sexual harassment, on the theory that "[u]nwelcome is unwelcome at any age.” ...

Perhaps the most grave, and surely the most lasting, disservice of today’s decision is that it ensures the court’s own disregard for the federal balance soon will be imparted to our youngest citizens. The court clears the way for the federal government to claim center stage in America’s classrooms. Today’s decision mandates to teachers instructing and supervising their students the dubious assistance of federal court plaintiffs and their lawyers and makes the federal courts the final arbiters of school policy and of almost every disagreement between students. Enforcement of the federal right recognized by the majority means that federal influence will permeate everything from curriculum decisions to day-to-day classroom logistics and interactions. After today, Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away. ...

A version of this article appeared in the June 02, 1999 edition of Education Week as Dissent: Ruling Teaches Johnny the Wrong Lesson

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