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. 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.
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 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. 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.