Cite as: 526 U. S. 629 (1999)
Kennedy, J., dissenting
dents is the majority's failure to grapple in any meaningful way with the distinction between elementary and secondary schools, on the one hand, and universities on the other. The majority bolsters its argument that schools can control their students' actions by quoting our decision in Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655 (1995), for the proposition that " 'the nature of [the State's] power [over public school children] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.' " Ante, at 646. Yet the majority's holding would appear to apply with equal force to universities, which do not exercise custodial and tutelary power over their adult students.
A university's power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment. See, e. g., Dambrot v. Central Mich. Univ., 55 F. 3d 1177 (CA6 1995) (striking down university discriminatory harassment policy because it was overbroad, vague, and not a valid prohibition on fighting words); UWM Post, Inc. v. Board of Regents of Univ. of Wis. System, 774 F. Supp. 1163 (ED Wis. 1991) (striking down university speech code that prohibited, inter alia, " 'discriminatory comments' " directed at an individual that " 'intentionally . . . demean' " the "'sex . . . of the individual' " and " '[c]reate an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity' "); Doe v. University of Mich., 721 F. Supp. 852 (ED Mich. 1989) (similar); Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F. 2d 386 (CA4 1993) (overturning on First Amendment grounds university's sanctions on a fraternity for conducting an "ugly woman contest" with "racist and sexist" overtones).
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