Constitutional lawyers like to tell the story (probably apocryphal, since it’s too good to be true) that, sometime in the 1960’s, when the Warren Court was engaged in its effort to rewrite the Constitution, one crusty old Harvard Law professor, upon reading the latest product from the Supremes, stormed into his constitutional law class, roared like an agonized beast, threw his con law casebook at the podium, and declared to his baffled students that he could no longer teach them constitutional law since there no longer was constitutional law. It is said he went on to teach tax.

That professor has joined the ongoing seminar on federal jurisprudence in the sky, but one wonders what he would have thought of the Supreme Court’s recent decision in the case of LaShonda Davis. Miss Davis, a fifth grader in a Georgia public school, was allegedly the victim of one G.F., another fifth grader, who “attempted to touch LaShonda’s breasts and genital area” and told her that “I want to get in bed with you” and “I want to feel your boobs.” G.F. continued this and similar conduct for several months; once, in the words of the Supreme Court, he “purportedly [placed] a door stop in his pants and [proceeded] to act in a sexually suggestive manner toward LaShonda during physical education class.” C.F. also allegedly “rubbed his body against LaShonda in the school hallway in what LaShonda considered a sexually suggestive manner.”

LaShonda and her mother were unable to get her teachers or the school administrators to stop G.F.’s conduct, but these incidents came to an end when “C.F. was charged with, and pleaded guilty to, sexual battery for his misconduct.” Presumably, this was a criminal proceeding, though the Court does not tell us what became of G.F. We do know what LaShonda’s mother did, though. She brought a lawsuit against her local Georgia school board for $500,000 in damages, claiming that the board (through the inaction of LaShonda’s teachers and school administrators) had discriminated against LaShonda in violation of federal law.

The federal law in question. Title IX, regulates the conduct of local schools receiving federal aid and provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX makes no explicit authorization of individual private damage actions such as LaShonda’s, nor does it suggest that student-on-student sexual harassment amounts to “discrimination under any education program or activity.” Taking this into account, the United States Court of Appeals for the 11th Circuit ruled that LaShonda had not stated a claim under federal law.

Nevertheless, late in May, the United States Supreme Court, in an opinion written by the Court’s first female justice, Sandra Day O’Connor, reversed, five to four, the decision of the 11th Circuit and decided that such private actions should be covered by Title IX, that “peer sexual harassment” allegedly occurred in LaShonda’s case, and that the teachers and administrators who did not prevent it could be guilty of the sexual discrimination forbidden by Title IX. Justice O’Connor’s opinion claimed that such a result would obtain only where school officials “remain[ed] deliberately indifferent to this form of misconduct” and the “sexual harassment” was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” In LaShonda’s case, however, her only claim of deprivation of educational opportunities was that “her previously high grades allegedly dropped as she became unable to concentrate on her studies.”

This was too much for the four dissenters, who must have felt like the tome-tossing Harvard Law professor. Observing that the Georgia county was receiving only $679,000 per year in federal aid, Justice Anthony Kennedy declared in the dissenting opinion that “The cost of defending against peer sexual harassment suits alone could overwhelm many school districts. . . . As a result [just as in the case at bar] school liability in one peer sexual harassment suit could approach, or even exceed, the total federal funding of many school districts.”

Unfortunately, the problems for school districts are even more alarming, because local school administrators, under earlier federal regulatory decisions, get it both coming and going. Said Justice Kennedy, “One student’s demand for a quick response to her harassment complaint will conflict with the alleged harasser’s demand for due process. Another student’s demand for a harassment-free classroom will conflict with the alleged harasser’s claim to a mainstream placement under the [federal] Individuals with Disabilities Education Act or with his state constitutional right to a continuing, free public education.”

There was no need for Justice O’Connor and her meddlesome colleagues to read this new and noxious federal civil right into Title IX. State criminal and tort remedies are available, and there are probably state education policies in place designed to offer relief to schoolchildren such as LaShonda. Those of us who had hoped that Justice O’Connor would continue her earlier practice of guarding against the encroachment of the federal leviathan into areas traditionally reserved to state and local governments might be forgiven if we feel like hurling our law books at the podium, or if we feel as mistreated as LaShonda.