674
Kennedy, J., dissenting
tice requirement and serve as a basis for a damages action," ante, at 649-650.
Contrary to the majority's assertion, however, respondents have made a cogent and persuasive argument that the type of student conduct alleged by petitioner should not be considered "sexual harassment," much less gender discrimination actionable under Title IX:
"[A]t the time Petitioner filed her complaint, no court, including this Court had recognized the concept of sexual harassment in any context other than the employment context. Nor had any Court extended the concept of sexual harassment to the misconduct of emotionally and socially immature children. The type of conduct alleged by Petitioner in her complaint is not new. However, in past years it was properly identified as misconduct which was addressed within the context of student discipline. The Petitioner now asks this Court to create out of whole cloth a cause of action by labeling childish misconduct as 'sexual harassment,' to stigmatize children as sexual harassers, and have the federal court system take on the additional burden of second guessing the disciplinary actions taken by school administrators in addressing misconduct, something this Court has consistently refused to do." Brief for Respondents 12-13 (citation omitted).
See also Brief for Independent Women's Forum as Amicus Curiae 19 (questioning whether "at the primary and secondary school level" it is proper to label "sexual misconduct by students" as "sexual harassment" because there is no power relationship between the harasser and the victim).
Likewise, the majority's assertion that Gebser and Franklin settled the question is little more than ipse dixit. Gebser and Franklin themselves did nothing more than cite Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986), a Title VII case, for the proposition that "when a su-
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