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Kennedy, J., dissenting
ity before the behavior that precipitated the disciplinary action occurred"); § 1415(k)(8)(B)(ii) (school "deemed to have knowledge that a child is a child with a disability if . . . the behavior or performance of the child demonstrates the need for such [special education and related] services"). "Disability," as defined in the IDEA, includes "serious emotional disturbance," § 1401(3)(A)(i), which the DOE, in turn, has defined as a "condition exhibiting . . . over a long period of time and to a marked degree that adversely affects a child's educational performance," an "inability to build or maintain satisfactory interpersonal relationships with peers and teachers," or "[i]nappropriate types of behavior or feelings under normal circumstances." 34 CFR § 300.7(b)(9) (1998). If, as the majority would have us believe, the behavior that constitutes actionable peer sexual harassment so deviates from the normal teasing and jostling of adolescence that it puts schools on clear notice of potential liability, then a student who engages in such harassment may have at least a colorable claim of severe emotional disturbance within the meaning of the IDEA. When imposing disciplinary sanction on a student harasser who might assert a colorable IDEA claim, the school must navigate a complex web of statutory provisions and DOE regulations that significantly limit its discretion.
The practical obstacles schools encounter in ensuring that thousands of immature students conform their conduct to acceptable norms may be even more significant than the legal obstacles. School districts cannot exercise the same measure of control over thousands of students that they do over a few hundred adult employees. The limited resources of our schools must be conserved for basic educational services. Some schools lack the resources even to deal with serious problems of violence and are already overwhelmed with disciplinary problems of all kinds.
Perhaps even more startling than its broad assumptions about school control over primary and secondary school stu-
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