concurring.
I concur in Judge Manion’s analysis of the lave I agree that absent a textual basis in Title IX for the application of “agency principles,” the proper legal standard for institutional liability under Title IX is the “actual knowledge” standard set forth in Rosa H. v. San Elizario Independent School Dist., 106 F.3d 648 (5th Cir.1997). I write separately to respond to some of the issues raised in the dissent.
As an initial matter, it is clear that the dissenting opinion premises its argument on factual, as opposed to legal, grounds in framing the issue in this case as whether the school district “should have known” of Rag-er’s harassment of the plaintiff, Heather Smith.1 The dissenter devotes a great deal of effort in an attempt to convince the reader that the evidence contained in the pleadings is sufficient to establish that the school district “should have known” of Rager’s harassment. Such effort, while commendable, is nevertheless unavailing, for we today hold the “knew or should have known” inquiry to be improper under Title IX’s “agency-free” rubric.
As the majority opinion points out, Rager did not force himself on Smith,2 and she neither resisted his sexual advances nor told him “No” whenever he attempted to become intimate with her. Both Smith and Rager also “concealed the relationship by engaging in sex quietly in locations where they could not be observed.” Further, Smith told no one about the relationship until late July 1991, after she had graduated. Upon receiving notice of the harassment, the school responded and promptly suspended Rager, advising him that if he did not resign forthwith he would be terminated and lose his teaching license (immediately after Rager’s resignation, the school board recommended to the state board of education that his teaching license be revoked).
The dissent goes on to note a number of facts that fall short of establishing that the school authorities “actually knew” of the harassment. For example, it states that Rager was a “constant presence at school swim meets in which Heather participated” in an attempt to make his presence at swim meets sound sinister, even though Rager had been Smith’s swim coach for the previous three summers, assisted at the girls’ swim meets (score keeping, etc.) and served as the coach of the boys’ swim team at the same high school. . I have a hard time comprehending how it could be considered unusual for a boys’ swim team coach to attend a girls’ swim meet competition, or for the girls’ swim team coach to attend a boys’ swim meet competition. Indeed, one can only assume that school officials welcomed Rager’s active role in attending, supervising and assisting in student activities, and probably even encouraged it. The dissent also makes a point of the fact that “[i]n the presence of Heather’s [other] coaches and teammates, Rager would rub down Heather’s shoulders.” It neglects to state that this “shoulder rubbing” occurred in the presence of Smith’s parents, and her parents never found it unusual enough to warrant a question, much less a comment or an objection. ■
My dissénting colleague further claims that “[w]e do not learn from the majority opinion ... that Rager and Smith were consistently seen together on school grounds” and that “[t]he District Court referenced [this] ... fact[ ], among others, in finding that a factual question was raised on summary judgment as to what Southport officials knew or reasonably should have known.” Rovner Op. at 1045. At the outset, I fail to understand how this evidence was supposed to put the school ,on notice that Rager was sexually harassing Smith. Since when is it so out of the ordinary for students and their instructors to be seen together regularly on school grounds-, after all, is not that where pupils and teachers are required to be during school hours? While the portion of the record to which the dissent cites does not even mention the fact that Smith and Rager were “consistently seen together,” I can only assume that the dissent was referring to the deposition testimony of the plaintiff-appellant Smith, who stated that Charles Robbins, the *1036Athletic Director at Southport, saw her arid Rager together “probably every other day, when [Rager] would walk [her] to class to the carpeted area of the school ... after [her] assistant period with him.” Once again, I do not believe that it is so unusual-for a male teacher to be seen in the company of a female student almost daily immediately following the close of the school period during which she was assigned to perform tasks (i.e., filing, typing, answering phones, etc.) as his assistant. Moreover, Smith. admits that there were no other students around to see the two of them together, they never held hands, and did not kiss each other good-bye. I also wish to note that, even if Robbins did in fact regularly pass Rager and Smith as they walked together through the halls of Southport, not only'did such innocent conduct fail to provide the school administration with notice of their sexual relationship, but it would be presumptuous of us to assume that Robbins truly “saw” .the couple. In other words, “seeing” an object involves much more than having it in one’s line of vision; rather, it is a mental process whereby one must focus both one’s eye and mind on the object. We are confronted with millions of visual images every day, yet it certainly cannot be said that we “see” and take notice of them all, much less common ones (like a student and teacher walking together in a school). For all we know (or Smith knew when she was deposed), Robbins’ mind could very well have been elsewhere at those times he crossed paths with Rager and Smith.
The dissent mentions that “some members of the swim team wondered, and discussed amongst themselves, why Rager and Smith spent so- much- time together.” Why should gossip of this type or mere speculation among teenaged students on the swim team have any bearing on the knowledge of school officials concerning the relationship? Is there one iota of evidence in the record to suggest that this gossip was ever related to the school authorities? The answer is “no.” The dissenter’s minute and added detail of the facts goes beyond the requirement of Rule 56 and, thus, does little to contribute to the establishment of the law in this most troubled area of sexual harassment. ■
Turning to the dissenting judge’s analysis of the law, I make the following observations:
The dissent states that the court’s opinion today “buck[s] the clear weight of circuit authority” by failing to adopt “agency principles” (i.e., the “knew or should have known” standard) as the standard for determining institutional liability under Title IX. The dissent would follow the lead of some other circuits and analogize Title IX (education) to Title VII (employment). However, this line of reasoning is not only deeply flawed, but, as the majority opinion makes clear, it is also unpersuasive, for it fails to account for the absence of statutory language in Title IX comparable to Title VII’s explicit use of the term “agents.”
I acknowledge that there may be room for argument over the meaning and scope of “agency principles,” but it is beyond dispute that “agency principles” apply in Title VII cases, because, as the Supreme Court explained in Meritor, the text of Title VII specifically defines “employer” to include “agents of the employer.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986); 42 U.S.C. § 2000e(b). The case before us, however, involves institutional liability under Title IX, which has no similar statutory language. Because the text of Title VII makes specific reference to the term “agents” — the same word upon which Mentor’s holding turned'— while the language of Title IX is absent any reference whatsoever to the term “agents,” it is obvious that Title VII is not “the most appropriate analogue when defining Title IX’s substantive standards,” as some courts have concluded absent a well-reasoned analysis. Mabry v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d 311, 316 n. 6 (10th Cir.1987). Attempting to erect a body of Title IX “agency law” on the foundations of Title VII and/or Meritor would thus be logically and legally erroneous. Perhaps for this very reason, the precedents upon which the dissent relies do not even discuss, much less analyze, the key fact that the text of Title IX (unlike the text of Title VII) contains no basis for .the application of “agency principles. ”
*1037My esteemed dissenting colleague notes that Mentor “viewed ‘agent’ as a limiting term,” thereby suggesting that our reliance on Title IX’s omission of that word is somewhat paradoxical, for “if any meaning is to be read into the absence of the word ‘agent’ from Title IX, it would be to extend Title IX liability further than Title VII to hold institutions strictly liable for discriminatory conduct without regard to agency principles.” Rovner Op. at 1047 (quoting Verna L. Williams & Deborah L. Brake, When a Kiss Isn’t Just a Kiss: Title IX and Student-to-Student Harassment, 30 Creighton L.Rev. 423, 450 (1997)). In other words, she reasons that Title IX’s standard of liability must logically be broader than that of Title VTI because, as set forth in the passage below, the Meritor Court explicitly declined to adopt a strict liability standard in cases of supervisory sexual harassment due to the existence of Title VII’s “agency” language; thus, once one removes the term “agent,” as did Congress in drafting Title IX, strict liability naturally follows:
---- Congress’ decision to define “employer” to include any “agent” of an employer surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability.
Meritor, 477 U.S. at 72, 106 S.Ct. at 2408 (emphasis added). I submit that a careful reading of this excerpt from Meritor provides two most compelling justifications as to why the dissent’s reasoning is inherently flawed. First, the Court found the term “agent” to “place some limit on the-acts of employees for which employers under Title VIT’ could be held responsible. • Id. (emphasis added). This is but another way of stating the obvious; that is, when applying agency principles in the context of Title VII, an employer may only be held liable for the sexually harassing conduct of an employee who acts within the scope of his or her employment. It does not deal with the question of what kind of notice is required of an employer before it may be subject to liability under Title VII. In fact, Meritor separately, albeit briefly, addressed the issue of notice, which brings me to my second point. Namely, the Meritor Court made clear that, because of Title VII’s “agency” language, the absence of notice to an employer does not necessarily insulate such employer from liability. Using the dissenting opinion’s logic (as well as that of the law; review article cited therein), it follows that the absence of the term “agents” from Title IX’s language would shield an educational institution having no notice of sexual harassment from liability. How then, as the dissent suggests, could the standard for imposing Title IX liability be broader (i.e., strict liability) than that under Title VII, when Meritor does not even require notice to be had for Title VII liability to he?
In short, I agree with the majority opinion that the decisions relied upon by the dissent “place inordinate reliance on Meritor [and “agency principles”] while ignoring [Mentor’s] rationale,” which is rooted in the text of Title VII. Maj. Op. at p. 1025. In contrast with those authorities the dissent cites, the majority ^opinion carefully delineates the textual differences between Title VII and Title IX (i.e., the inclusion of the term “agents” in the former statute and its omission in the latter). In view of these differences, I believe it is proper that we reject the flawed logic of those circuits who have reached out and, based on a foundation of quicksand, treated these two entirely separate and distinct statutes as “analogous.” For the same reason, I likewise disagree with the dissent and think it is obvious that we are not “eschew[ing] the more widely-accepted negligence or ‘knew or should have known’ standard traditionally applied in hostile environment sexual harassment eases under Title VII.” , Rovner Op. at 1045. After .all, let us not lose sight of the fact that this is not a “sexual harassment case[ ] under Title VII.”
I am also unpersuaded by the dissent’s reliance on Title IX’s prohibition of sexual harassment “under any education program *1038or activity,” which includes “all of the operations of ... a local education agency ..., system or vocational, or other school system.” Rovner Op. at 1047 (quoting 20 U.S.C. § 1687 (emphasis added)). The dissenting opinion reasons that, insofar as Title IX forbids harassment “under,” as opposed to “by,” an educational program or activity, the statute does not reference an actor, and as such, “it necessarily follows that the statute also would not reference ‘agents.’ ” Rovner Op. at 1047 (citing Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1406-07 (11th Cir. 1997) (Black, J., concurring)). In my view, one should not be so hasty to add meaning to a statute (and, in fact, suggest invoking an entirely different legal framework, i.e., agency law) simply because its drafters chose to express a prohibitory rule in the passive voice, as was done in the case of Title IX. True, the language3 and objectives of Title VII and Title IX are somewhat alike to the extent that the two statutes both seek to eliminate organizational harassment, whether sexual or racial, from the top down. However, we need be ever-mindful of the Supreme Court’s admonition that “although two statutes may be similar in language and objective, we must not fail to give effect to the differences between them.” North Haven Board of Education v. Bell, 456 U.S. 512, 530, 102 S.Ct. 1912, 1922, 72 L.Ed.2d 299 (1982) (emphasis added) (contrasting Title IX with Title VI). As between Title VII and Title IX, such similarities give way to one very significant textual difference — a difference that the majority has today seen fit to acknowledge.
The dissent criticizes the majority for failing to give proper deference to the Department of Education’s interpretation of institutional liability standards under Title IX, as set forth by that agency’s Office of Civil Rights (“OCR”). Initially, I do not dispute that “legislative rules” which the OCR promulgates pursuant to its administrative authority under Title IX are entitled to deference from this Court, at least “more than mere deference or weight.” Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977). However, “[ajgency interpretations, unlike legislative rules, are not controlling on the courts, ” Doe v. Reivitz, 830 F.2d 1441; 1447 (7th Cir.1987) (emphasis added), and as such, they are deserving of little or no deference.
The courts may find [agency interpretations] persuasive and may treat them as if they were binding, but the courts have the reserve of power to substitute their own judgment on all questions of statutory interpretation. The preliminary power of interpretation is in the agency, but the final power of interpretation is in the courts.
Id. (quoting 2 K. Davis, Administrative Law Treatise § 7:11, at 55 (1979)). The OCR “final policy guideline” in this case appears to be neither an “administrative rule” nor an agency “interpretation.” In. Rowinsky v. Bryan Independent School DisL, the Fifth Circuit implied as much when it explained that “legislative regulations] ... are accorded far greater deference than are interpretive regulations____ The [OCR] Policy Memorandum deserves more deference [than interpretive regulations] because it represents a deliberate policy statement by .the agency....” Rowinsky v. Bryan Independent School Dist., 80 F.3d 1006, 1015 (5th Cir. 1996) (emphasis added). Clearly, the above-quoted language places administrative rules on a much more deferential platform than policy guidelines, for administrative rules are granted “far greater deference” than agency interpretations while policy guidelines receive only “more deference” than those same agency interpretations. Unfortunately, the Supreme Court has heretofore not been called upon to determine how much “more deference” than no deference we should apply when construing OCR policy guidelines. Thus, courts have seen fit to arbitrarily pick and choose the level of deference they wish to implement in cases such as this one. See Rosa H., 106 F.3d at 658; Cohen v. Brown University, 101 F.3d 155, 173 (1st Cir.1996) (“substantial deference”); Favia v. Indiana University of Pennsylvania, 812 F.Supp. *1039578, 584 (W.D.Pa.1993) (“great deference”); Bosley v. Kearney R-1 Sch. Dist., 904 F.Supp. 1006 (W.D.Mo.1995) (“some deference”).
In light of the question as to the amount of deference we are to give to the OCR pohey guidelines, I think it is only appropriate that we approach them cautiously. Indeed, while our case law “demónstratela] loyal adherence” to the principle that we defer to agency interpretations which evidence an attempt to “implement the will of Congress” through the regulatory process, “we have never interpreted this principle as a direction to approach our review of all government positions with a rubber stamp.” Pennington v. Didrickson, 22 F.3d 1376, 1383 (7th Cir.1994) (emphasis added). As noted in the majority opinion, and clearly expressed in our case law, “ ‘the weight given to an agency interpretation depends on many factors, including the validity of its reasoning.’ ” Maj. Op. at 1034 (quoting Reivitz, 830 F.2d at 1446-47) (emphasis added); see also Pennington, 22 F.3d at 1383 (Agency interpretations should only be deferred to “whenever that interpretation of the agency can be said to embody a deliberate and considered interpretation of legislative intent.”) (emphasis added). The March 1997 Office of Civil Rights’ policy guidance, despite its length, fails to explain much less analyze the OCR’s position that the “knew or should have known” standard applies in Title IX eases. Instead, it states (in a mere footnote, no less) that agency principles “should govern the liability of educational institutions under Title IX for the harassment of students by teachers.” 62 Fed.Reg. 12034 (Mar. 13,1997) (emphasis added). The OCR, for reasons unexplained, fails to state why such principles “should govern,” in light of either the text of Title IX or the two Supreme Court decisions it cites (Meritor and Franklin). Because of the failure of the OCR to provide a “reasoned explanation” for its position, I agree with the holding of the majority opinion that we need not follow the Office of Civil Rights’ view on the issue of institutional liability for student-teacher sexual harassment under Title IX, much less treat the OCR policy guidance as holy -writ. See Rowinsky, 80 F.3d at 1016 (“Absent a reasoned explanation for why the statutory language supports [the OCR’s position], the OCR’s interpretation should not be accorded any deference.”). We must approach this new and developing area of federal law with acute scrutiny. If the OCR in fact has a reasoned justification for injecting the “knew or should have known” standard into Title IX jurisprudence, it is nowhere to be found, and it would be imprudent for us to attempt to create one. Thus starting with a clean slate, we are of the opinion that the OCR’s blind application of Title VII’s “agency” principles, without explanation or support in case law, to Title IX’s “agency-free” rubric is unwarranted.
Just as this court must be extremely cautious before giving statutory language retroactive effect, we must likewise refrain from giving retroactive effect to agency policy guidelines. As late as June of this year (1997), less than four months ago, the Supreme Court emphasized the “presumption against retroactivity” and the “traditional rule requiring retroactive application to be supported by a clear [statutory] statement” in Lindh v. Murphy, — U.S.-,-, 117 S.Ct. 2059, 2062, 138 L.Ed.2d 481 (1997) (emphasis added) (specifically holding that recent amendments to the federal habeas corpus statute did not apply to petitions in non-capital habeas cases pending at the time of the passagé of the new legislation). In light of such clear language from our Nation’s highest court, I am at a loss to understand how the dissent advocates that we retroactively apply policy guidance finalized in March of 1997, some six years after the events in this case transpired (1990-91). As the Fifth Circuit pointed out in Rosa H.'\
[W]e cannot apply these guidelines retroactively. ... [Recipients of Title IX funds are bound by their agreement with the federal government. The government can add strings to the Title IX funds as it disburses them. But it cannot modify past agreements with recipients by unilaterally issuing guidelines through the Department of Education. ,
106 F.3d at 658. Thus, at a minimum, I cannot conceive how one can reasonably argue that the OCR’s recently-finalized policy guidance is controlling in this case, the facts *1040of which pre-date the issuance of the guidance by more than five years. Nor has the dissent cited any ease law to support its position that we may give this agency guidance retroactive application. Rather, it merely states that “[t]he OCR’s ‘final policy guidance’ does not amend Title IX in the same way that the AEDPA [Anti-Terrorism and Effective Death Penalty Act] amended the federal habeas corpus statute that was at issue in Lindh,” and therefore, “there is no retroactivity issue in this case.” Rovner Op. at 1049, n. 8. I am at a loss to understand how the OCR’s endorsement of the “knew or should have known” standard, and the dissent’s automatic adoption of it, would not invoke Lindh’s presumption against retroactivity. After all, our recognition of such a standard would most certainly have “substantive effects” and “affect substantive entitlement to relief’ in Title IX litigation — two factors which Lindh explains argue against the retroactive application of federal laws. Lindh, — U.S. at-, 117 S.Ct. at 2063.
In an attempt to buttress its argument, the dissent cites a brief passage from the legislative history of Title IX, which it believes is somehow an “expression of legislative intent” that the “knew or should have known” standard ought to govern the liability of educational institutions for teacher-student harassment. Of course, as the majority opinion makes plain, the clearest indicator of congressional intent is the plain language of the statute itself, and Title IX does not even refer to “agents” in the definition of “program or activity” (in contrast with Title VII’s definition of “employer,” which does include such terminology).4 It is well-established that “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Baker v. Runyon, 114 F.3d 668, 670 (7th Cir.1997) (emphasis added) (quoting Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992)); see also Morse v. Republican Party of Virginia, — U.S. -, -n. 18, 116 S.Ct. 1186, 1234 n. 18, 134 L.Ed.2d 347 (1996) (Thomas, J., dissenting) (emphasis added) (“We are not free to construe statutes by wondering about what Congress ‘would have wanted to enact. ’ There are myriad reasons why measures that ‘a Congress’ ... might ‘wan[t] to enact’ never become law. We must look to the extant text of the statute and see what Congress has in fact, and not in theory; enacted.”); W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991) (“[T]he purpose of a statute includes not only what it sets out to change, but also what it resolves to leave alone. The best evidence of that purpose is the statutory text adopted by both Houses of Congress and submitted to the President.”) (citations omitted). Moreover, although Title IX has been on the books for more than twenty years (since 1972), our Nation’s legislature has not seen fit in that period of time to amend the law by inserting language that would even suggest that agency principles govern. In light of Congress’ obvious satisfaction with the law as it now stands, we should be most reluctant to go searching for scraps of legislative history to support expansion of the statute.
The mere morsel of legislative history quoted by the dissent pre-dates Meritor’s holding that “agency principles” apply in Title VII eases and thus cannot be construed as endorsing the extension of Mentor’s holding to the Title IX context (the argument implicit in the dissent). The quoted passage says nothing about sexual harassment, for the focus of congressional concern in 1972 was on the issue of discrimination in hiring/firing and advancement (i.e., glass ceiling). There was a paucity of recognition, compared with today’s acceptance, that sexual harassment is a form of sex discrimination. Far from stating that “agency principles” should be used *1041to determine an educational institution’s liability for such harassment, the House Report simply states:
One of the single most important pieces of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964.... Title VII, however, specifically excludes educational institutions from its terms. [Title IX] would remove that exemption and bring those in education under the equal employment provision.
H.R.Rep. No. 554, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 2462, 2512. This brief passage merely reflects the considered view of Congress (some twenty-five years ago) that the equal employment provisions of Title VII ought to be extended to employees in educational settings. It provides not a scintilla of evidence of congressional intent on the issue before this Court (i.e., the standard of institutional liability under Title IX), and certainly should not be used in an attempt to circumvent the inescapable fact that the text of the statute does not refer to “agents” and thus provides no basis for the use of agency principles. So when my dissenting colleague declares that “today’s majority ignores that expression of congressional intent in construing Title IX,” she would do well to remember that “only the most extraordinary showing of contrary intentions from [legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (emphasis added). This is not one of those “rare and exceptional circumstances” wherein legislative history (a scant history at that) will override the unambiguous words of Congress. Id. (quoting TVA v. Hill, 437 U.S. 153, 187, n. 33, 98 S.Ct. 2279, 2298, n. 33, 57 L.Ed.2d 117 (1978)), The author of the dissent opines that our holding today is “stingy” in that it fails to give Title IX “a sweep as broad as its language.” North Haven Bd. of Ed., 456 U.S. at 521, 102 S.Ct. at 1918. I disagree. The analysis of institutional liability set forth in the majority opinion gives Title IX a logical interpretation as broad as the language of that statute will allow, because we in the majority recognize that this Court must not expand, much less enlarge upon, the scope of a statute unless the Supreme Court directs us to do so, or Congress has done so on its own initiative. As the majority opinion makes clear, there is no basis in Title IX for the application of agency principles. As judges, we are obligated to follow the law. We do not have a license to amend federal statutes (even “remedial” ones), for that responsibility clearly lies with the Legislature. In short, “we resolve[ ] ... ambiguities] not by invoking some policy that supercedes the text of the statute,” W. Va. Univ. Hosp., Inc., 499 U.S. at 98-100, 111 S.Ct. at 1147, but rather by limiting ourselves to that meaning which a given text will reasonably bear.
I wish to emphasize that I am unalterably opposed to sexual harassment, which is both intolerable and wrong. I am particularly sympathetic to those unfortunate young persons in our society who are or have been sexually abused or harassed by people senior to them in age, and supposedly wiser, who should know better than to engage in such reprehensible activity. Sadly, as Rosa H. observes, “it is increasingly evident ... that sexual harassment and molestation of students by teachers is not uncommon.” 106 F.3d at 657. Teachers entrusted with the care of our children must never, under any circumstances, use their position of trust and authority to gratify themselves sexually or for any other improper purpose. I am confident that all members of this Court agree that such conduct is not only morally repugnant, but breaks a sacred trust embodied in the time-honored phrase “in loco parentis.” That said, however, I note that the question before us is not the factual one of whether we believe Smith’s allegations about Rager. Rather, we are called upon to decide only the legal question of when and under what circumstances an educational institution (i.e., the school district) may be held liable for sexual harassment under Title IX.
Because Title IX, unlike Title VII, does not refer to “agents,” the majority on this panel today has wisely concluded that “agency principles” do not apply in determining whether an educational institution should be held liable for alleged acts of harassment by *1042a schoolteacher. Recognizing that “Title IX requires a showing of actual, intentional discrimination on the part of the school district,” id., we have concluded that the “actual knowledge” standard set forth by the Fifth Circuit should be employed in determining an educational institution’s liability in Title IX sexual harassment cases. Under this standard, “a student cannot recover from the school district under Title IX unless the school district actually knew that there was a substantial risk that sexual abuse would occur.” Id. at 653. As the Rosa H. court summarized:
a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.
Id. at 660 (emphasis added).
It is certainly worth noting some of the pitfalls that we will avoid by adopting the reasoned approach set forth in the majority opinion. If we were to open the “Pandora’s box” of “agency principles” in the Title IX context — without a basis in the statute or Supreme Court ease law for doing so — I am certain that the myriad agency concepts set forth in the Restatement (2d) of Agency would soon be' enlisted in the cause and ever-increasing drumbeat of making educational institutions strictly liable for sexual harassment (and at what expense to taxpayers?). As noted in Rosa H., agency principles could be interpreted by the courts to create liability for school districts “in virtually every case in which a teacher harasses, seduces, or sexually abuses a student.” 106 F.3d at 655 (emphasis added). This is a potential danger because, “in addition to § 219(2)(b) of the Restatement, which makes a master liable when he acts negligently, courts could rely on § 219(2)(d), which creates liability whenever the servant [i.e., teacher] is ‘aided in accomplishing the tort by the existence of the agency relationship.’” Id. Since it is the school system that puts the teacher in a position which allows him to allegedly harass students, I am confident that crusading litigators and/or creative courts would attempt to rely on § 219(2)(d) to establish almost unlimited Title IX liability, thereby possibly creating a devastating financial impact on many school districts that are today suffering from inadequate facilities, outdated equipment, and shrinking budgets. The high costs of insuring against teacher-student sexual harassment, not to mention the steep litigation expenses associated with defending allegations of such conduct, would only be passed on to school districts nation-wide and, in turn, public school students (in the form of further cost-cutting), under the dissent’s “knew or should have known” standard. In fact, the price paid for institutional harassment would inevitably be higher than that borne by employers for the same conduct occurring in the workplace since Title IX, unlike Title VII, is not tempered by statutory provisions that can shield defendant-institutions from excessive liability. For example, whereas Title VII includes a statutory ceiling on recoverable monetary damages, see 42 U.S.C. § 1981a(b)(3), Title IX contains no such restriction. Equally damaging, however, would be the effect of a relaxed standard of liability, like the one proposed by the dissent, on educational opportunities for female students in our secondary schools. That is, how many male teachers would be willing to select females as student assistants and risk allegations of sexual misconduct if simply attending school athletic functions, closing doors during class, and walking down school corridors (or in other -public areas) with them raised rumors and/or suspicions of impropriety? I would venture to guess very few. But we need not burden ourselves with policy considerations, for they are “for Congress to weigh, and we are not free to ignore the language -... of Title IX even if we were to disagree with the legislative choice.” North Haven Bd. of Educ., 456 U.S. at 535 n. 26, 102 S.Ct. at 1925 n. 26. Absent direction from either Congress or the Supreme Court to analyze agency-law questions such as whether, and if so, how §§ 219(2)(b) and 219(2)(d) apply in the Title IX context, we certainly are not obligated to engage in such analysis and should decline the dissent’s invitation to do so.
*1043My dissenting colleague’s characterization of the majority opinion as “stingy” might, at first glance, strike some as being derogatory in nature, but in my view it only underscores the appropriate caution with which we must approach those important areas of law that neither the United States Congress nor the Supreme Court has seen fit to address, or much less for which they have set forth guiding parameters. If we are to avoid exceeding our role as a reviewing federal appellate court, in contradistinction to a lawmaking body, we must allow either Congress or the Supreme Court to be the final arbiter on the question of institutional liability for sexual harassment under Title IX. Until such time as the Nation’s legislature expresses a clear intent that educational institutions under Title IX may be held liable for student-teacher sexual harassment under “agency principles,” or until the High Court interprets Title IX to require the application of agency principles, we should not impose such a requirement by judicial decree, as the majority opinion recognizes.
. I shall refer to the plaintiff, Heather Smith, as "Smith” throughout the duration of this opinion.
. With the exception of one incident in which he allegedly suggested fellatio.
. When I refer to the language of Title VII and Title IX being "similar,” I do so in a very general sense. No one will dispute that the text of the two statutes differs with respect to the use of the term "agents” in Title VII and the absence thereof in Title IX.
. The differences between the regulations promulgated under Title VII and Title IX, .respectively, are also significant. As the Rosa H. Court noted:
Title VII regulations state forthrightly that “an employer ... is responsible for its acts and those of its agents and supervisory employees with respect'to sexual harassment....” 29 C.F.R. § 1604.11. Title IX, by contrast, does not create any administrative body to regulate private claimants' rights, and the regulations promulgated under Title IX make no mention of ■sexual harassment. See 34 C.F.R. §§ 106.1— 106.71 (Title IX regulations).
106 F.3d at 657 (emphasis added).