662
Kennedy, J., dissenting
or activity" limitation on school liability. At the very least, my reading undermines the majority's implicit claim that Title IX imposes an unambiguous duty on schools to remedy peer sexual harassment.
B
1
Quite aside from its disregard for the "under the program" limitation of Title IX, the majority's reading is flawed in other respects. The majority contends that a school's deliberate indifference to known student harassment "subjects" students to harassment—that is, "cause[s] [students] to undergo" harassment. Ante, at 645. The majority recognizes, however, that there must be some limitation on the third-party conduct that the school can fairly be said to cause. In search of a principle, the majority asserts, without much elaboration, that one causes discrimination when one has some "degree of control" over the discrimination and fails to remedy it. Ante, at 644.
To state the majority's test is to understand that it is little more than an exercise in arbitrary line-drawing. The majority does not explain how we are to determine what degree of control is sufficient—or, more to the point, how the States were on clear notice that the Court would draw the line to encompass students.
Agency principles usually mark the outer limits of an entity's liability for the actions of an individual over whom it exercises some control. Cf. Faragher v. Boca Raton, 524 U. S. 775 (1998) (applying agency principles to delimit Title VII employer liability); Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) (same). The Court, for example, has not recognized liability for the actions of nonagents under Title VII, which contains an express private right of action and is not Spending Clause legislation. The majority nonetheless rejects out-of-hand an agency limitation on Title IX liability based on its cramped reading of Gebser. As
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