school employees, other students, or third parties is covered by Title IX and that agency standards govern institutional liability.  In the view of the OCR, a school is always liable for quid pro quo harassment of a student even if the school did not approve, know of, or could not have reasonably known of the harassment.  For hostile environment harassment by school employees, other students, or third parties, the OCR advises that the school is liable under Title IX for negligence.  In the case of school employees the school is also automatically liable if the employee acted with what the OCR terms "apparent authority," or was aided in carrying out the sexual harassment of the student by his position.  Under the Guidelines' discussion ofgreat 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.


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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