But I expect this wave of activity will die down quickly as lower courts signal that they will be receptive only to claims of egregious harassment that are soundly documented to support the elements of a Davis cause of action. The O'Connor opinion provides considerable flexibility for colleges to move in this direction. I would strongly encourage this course of action. As is true in other contexts as well, educational and ethical standards can be as important in guiding behavior as legal standards, and non-legal solutions to campus problems can be as viable as legal solutions or more so. This is especially true when we are dealing with matters, like peer harassment, that often present themselves in shades of gray rather than in black and white.
Colleges have less direct control over students than elementary and secondary schools.
Any court that follows Davis will give close attention to the issue of control. But it is important to note that the Davis case involved elementary education, and O'Connor's reasoning about control is crafted to fit that context. O'Connor acknowledges that universities would not be expected to exercise the same control over students as would elementary schools. It should follow that colleges and universities, in general, will have less risk exposure for peer harassment under Title IX because they exert less control over students and over the educational environment than do elementary and secondary schools. Now as before, speech codes still would encounter serious First Amendment difficulties and, in addition, would still have quite limited efficacy.