Zuni Public School District No. 89 v. Department of Education

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ZUNI PUBLIC SCHOOL DISTRICT NO. 89 ET AL. v.

DEPARTMENT OF EDUCATION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 05–1508. Argued January 10, 2007—Decided April 17, 2007

The Federal Impact Aid Program provides financial assistance to local

school districts whose ability to finance public school education is ad

versely affected by a federal presence. The statute prohibits a State

from offsetting this federal aid by reducing state aid to a local dis

trict. To avoid unreasonably interfering with a state program that

seeks to equalize per-pupil expenditures, the statute contains an ex

ception permitting a State to reduce its own local funding on account

of the federal aid where the Secretary of Education finds that the

state program “equalizes expenditures” among local school districts.

20 U. S. C. §7709(b)(1). The Secretary is required to use a formula

that compares the local school district with the greatest per-pupil ex

penditures in a State to the school district with the smallest per-pupil

expenditures. If the former does not exceed the latter by more than

25 percent, the state program qualifies as one that “equalizes expen

ditures.” In making this determination, the Secretary must, inter

alia, “disregard [school districts] with per-pupil expenditures . . .

above the 95th percentile or below the 5th percentile of such expendi

tures in the State.” §7709(b)(2)(B)(i). Regulations first promulgated

30 years ago provide that the Secretary will first create a list of

school districts ranked in order of per-pupil expenditure; then iden

tify the relevant percentile cutoff point on that list based on a specific

(95th or 5th) percentile of student population—essentially identifying

those districts whose students account for the 5 percent of the State’s

total student population that lies at both the high and low ends of the

spending distribution; and finally compare the highest spending and

lowest spending of the remaining school districts to see whether they

satisfy the statute’s requirement that the disparity between them not

2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Syllabus

exceed 25 percent.

Using this formula, Department of Education officials ranked New

Mexico’s 89 local school districts in order of per-pupil spending for

fiscal year 1998, excluding 17 schools at the top because they con

tained (cumulatively) less than 5 percent of the student population

and an additional 6 districts at the bottom. The remaining 66 dis

tricts accounted for approximately 90 percent of the State’s student

population. Because the disparity between the highest and lowest of

the remaining districts was less than 25 percent, the State’s program

“equalize[d] expenditures,” and the State could offset federal impact

aid by reducing its aid to individual districts. Seeking further re

view, petitioner school districts (Zuni) claimed that the calculations

were correct under the regulations, but that the regulations were in

consistent with the authorizing statute because the Department

must calculate the 95th and 5th percentile cutoffs based solely on the

number of school districts without considering the number of pupils

in those districts. A Department Administrative Law Judge and the

Secretary both rejected this challenge, and the en banc Tenth Circuit

ultimately affirmed.

Held: The statute permits the Secretary to identify the school districts

that should be “disregard[ed]” by looking to the number of the dis

trict’s pupils as well as to the size of the district’s expenditures per

pupil. Pp. 7–17.

(a) The “disregard” instruction’s history and purpose indicate that

the Secretary’s calculation formula is a reasonable method that car

ries out Congress’ likely intent in enacting the statutory provision.

For one thing, that method is the kind of highly technical, specialized

interstitial matter that Congress does not decide itself, but delegates

to specialized agencies to decide. For another, the statute’s history

strongly supports the Secretary. The present statutory language

originated in draft legislation sent by the Secretary himself, which

Congress adopted without comment or clarification. No one at the

time—no Member of Congress, no Department of Education official,

no school district or State—expressed the view that this statutory

language was intended to require, or did require, the Secretary to

change the Department’s system of calculation, a system that the

Department and school districts across the Nation had followed for

nearly 20 years. Finally, the purpose of the disregard instruction,

which is evident in the language of the present statute, is to exclude

statistical outliers. Viewed in terms of this purpose, the Secretary’s

calculation method is reasonable, while the reasonableness of Zuni’s

proposed method is more doubtful as the then Commissioner of Edu

cation explained when he considered the matter in 1976. Pp. 7–11.

(b) The Secretary’s method falls within the scope of the statute’s

Cite as: 550 U. S. ____ (2007) 3

Syllabus

plain language. Neither the legislative history nor the reasonable

ness of the Secretary’s method would be determinative if the statute’s

plain language unambiguously indicated Congress’ intent to foreclose

the Secretary’s interpretation. See Chevron, supra, at 842–843. That

is not the case here. Section 7709(b)(2)(B)(i)’s phrase “above the 95th

percentile . . . of . . . [per-pupil] expenditures” (emphasis added) limits

the Secretary to calculation methods involving per-pupil expendi

tures. It does not tell the Secretary which of several possible meth

ods the Department must use, nor rule out the Secretary’s present

formula, which distributes districts in accordance with per-pupil ex

penditures, while essentially weighting each district to reflect the

number of pupils it contains. This interpretation is supported by dic

tionary definitions of “percentile,” and by the fact that Congress, in

other statutes, has clarified the matter at issue to avoid comparable

ambiguity. Moreover, “[a]mbiguity is a creature not [just] of defini

tional possibilities but [also] of statutory context.” Brown v. Gardner,

513 U. S. 115, 118. Context here indicates that both students and

school districts are of concern to the statute, and, thus, the disregard

instruction can include within its scope the distribution of a ranked

population consisting of pupils (or of school districts weighted by pu

pils), not just a ranked distribution of unweighted school districts

alone. Finally, this Court is reassured by the fact that no group of

statisticians, nor any individual statistician, has said directly in

briefs, or indirectly through citation, that the language in question

cannot be read the way it is interpreted here. Pp. 11–17.

437 F. 3d 1289, affirmed.

BREYER, J., delivered the opinion of the Court, in which STEVENS,

KENNEDY, GINSBURG, and ALITO, JJ., joined. STEVENS, J., filed a concur

ring opinion. KENNEDY, J., filed a concurring opinion, in which ALITO,

J., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,

C. J., and THOMAS, J., joined, and in which SOUTER, J., joined as to Part

I. SOUTER, J., filed a dissenting opinion.

Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1508

_________________

ZUNI PUBLIC SCHOOL DISTRICT NO. 89, ET AL.,

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE BREYER delivered the opinion of the Court.

A federal statute sets forth a method that the Secretary

of Education is to use when determining whether a State’s

public school funding program “equalizes expenditures”

throughout the State. The statute instructs the Secretary

to calculate the disparity in per-pupil expenditures among

local school districts in the State. But, when doing so, the

Secretary is to “disregard” school districts “with per-pupil

expenditures . . . above the 95th percentile or below the 5th

percentile of such expenditures . . . in the State.” 20

U. S. C. §7709(b)(2)(B)(i) (emphasis added).

The question before us is whether the emphasized statu

tory language permits the Secretary to identify the school

districts that should be “disregard[ed]” by looking to the

number of the district’s pupils as well as to the size of the

district’s expenditures per pupil. We conclude that it does.

I

A

The federal Impact Aid Act, 108 Stat. 3749, as amended,

20 U. S. C. §7701 et seq., provides financial assistance to

2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

local school districts whose ability to finance public school

education is adversely affected by a federal presence.

Federal aid is available to districts, for example, where a

significant amount of federal land is exempt from local

property taxes, or where the federal presence is responsi

ble for an increase in school-age children (say, of armed

forces personnel) whom local schools must educate. See

§7701. The statute typically prohibits a State from offset

ting this federal aid by reducing its own state aid to the

local district. If applied without exceptions, however, this

prohibition might unreasonably interfere with a state

program that seeks to equalize per-pupil expenditures

throughout the State, for instance, by preventing the state

program from taking account of a significant source of

federal funding that some local school districts receive.

The statute consequently contains an exception that per

mits a State to compensate for federal impact aid where

“the Secretary [of Education] determine[s] and certifies . . .

that the State has in effect a program of State aid that

equalizes expenditures for free public education among

local [school districts] in the State.” §7709(b)(1) (2000 ed.,

Supp. IV) (emphasis added).

The statute sets out a formula that the Secretary of

Education must use to determine whether a state aid

program satisfies the federal “equaliz[ation]” requirement.

The formula instructs the Secretary to compare the local

school district with the greatest per-pupil expenditures to

the school district with the smallest per-pupil expendi

tures to see whether the former exceeds the latter by more

than 25 percent. So long as it does not, the state aid

program qualifies as a program that “equalizes expendi

tures.” More specifically the statute provides that “a

program of state aid” qualifies, i.e., it “equalizes expendi

tures” among local school districts if,

“in the second fiscal year preceding the fiscal year for

Cite as: 550 U. S. ____ (2007) 3

Opinion of the Court

which the determination is made, the amount of per-

pupil expenditures made by [the local school district]

with the highest such per-pupil expenditures . . . did

not exceed the amount of such per-pupil expenditures

made by [the local school district] with the lowest

such expenditures . . . by more than 25 percent.”

§7709(b)(2)(A) (2000 ed.).

The statutory provision goes on to set forth what we

shall call the “disregard” instruction. It states that, when

“making” this “determination,” the “Secretary shall . . .

disregard [school districts] with per-pupil expenditures . . .

above the 95th percentile or below the 5th percentile of such

expenditures.” §7709(b)(2)(B)(i) (emphasis added). It adds

that the Secretary shall further:

“take into account the extent to which [the state pro

gram reflects the special additional costs that some

school districts must bear when they are] geographi

cally isolated [or when they provide education for]

particular types of students, such as children with

disabilities.” §7709(b)(2)(B)(ii).

B

This case requires us to decide whether the Secretary’s

present calculation method is consistent with the federal

statute’s “disregard” instruction. The method at issue is

contained in a set of regulations that the Secretary first

promulgated 30 years ago. Those regulations essentially

state the following:

When determining whether a state aid program “equal

izes expenditures” (thereby permitting the State to reduce

its own local funding on account of federal impact aid), the

Secretary will first create a list of school districts ranked

in order of per-pupil expenditure. The Secretary will then

identify the relevant percentile cutoff point on that list on

the basis of a specific (95th or 5th) percentile of student

4 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

population—essentially identifying those districts whose

students account for the 5 percent of the State’s total

student population that lies at both the high and low ends

of the spending distribution. Finally the Secretary will

compare the highest spending and lowest spending school

districts of those that remain to see whether they satisfy

the statute’s requirement that the disparity between them

not exceed 25 percent.

The regulations set forth this calculation method as

follows:

“[D]eterminations of disparity in current expenditures

. . . per-pupil are made by—

“(i) Ranking all [of the State’s school districts] on the

basis of current expenditures . . . per pupil [in the

relevant statutorily determined year];

“(ii) Identifying those [school districts] that fall at the

95th and 5th percentiles of the total number of pupils

in attendance [at all the State’s school districts taken

together]; and

“(iii) Subtracting the lower current expenditure . . .

per pupil figure from the higher for those [school dis

tricts] identified in paragraph (ii) and dividing the dif

ference by the lower figure.” 34 CFR pt. 222, subpt.

K, App., ¶1 (2006) (emphasis deleted).

The regulations also provide an illustration of how to

perform the calculation:

“In State X, after ranking all [school districts] in order

of the expenditures per pupil for the [statutorily de

termined] fiscal year in question, it is ascertained by

counting the number of pupils in attendance in those

[school districts] in ascending order of expenditure

that the 5th percentile of student population is

reached at [school district A] with a per pupil expendi

ture of $820, and that the 95th percentile of student

population is reached at [school district B] with a per

Cite as: 550 U. S. ____ (2007) 5

Opinion of the Court

pupil expenditure of $1,000. The percentage disparity

between the 95th percentile and the 5th percentile

[school districts] is 22 percent ($1000−$820 =

$180/$820).” Ibid.

Because 22 percent is less than the statutory “25 percent”

requirement, the state program in the example qualifies

as a program that “equalizes expenditures.”

C

This case concerns the Department of Education’s appli

cation of the Secretary’s regulations to New Mexico’s local

district aid program in respect to fiscal year 2000. As the

regulations require, Department officials listed each of

New Mexico’s 89 local school districts in order of per-pupil

spending for fiscal year 1998. (The calculation in New

Mexico’s case was performed, as the statute allows, on the

basis of per-pupil revenues, rather than per-pupil expendi

tures. See 20 U. S. C. §7709(b)(2)(A). See also Appendix

B, infra. For ease of reference we nevertheless refer, in

respect to New Mexico’s figures and throughout the opin

ion, only to “per-pupil expenditures.”) After ranking the

districts, Department officials excluded 17 school districts

at the top of the list because those districts contained

(cumulatively) less than 5 percent of the student popula

tion; for the same reason, they excluded an additional 6

school districts at the bottom of the list.

The remaining 66 districts accounted for approximately

90 percent of the State’s student population. Of those, the

highest ranked district spent $3,259 per student; the

lowest ranked district spent $2,848 per student. The

difference, $411, was less than 25 percent of the lowest

per-pupil figure, namely $2,848. Hence, the officials found

that New Mexico’s local aid program qualifies as a pro

gram that “equalizes expenditures.” New Mexico was

therefore free to offset federal impact aid to individual

districts by reducing state aid to those districts.

6 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

Two of New Mexico’s public school districts, Zuni Public

School District and Gallup-McKinley County Public School

District (whom we shall collectively call Zuni), sought

further agency review of these findings. Zuni conceded

that the Department’s calculations were correct in terms

of the Department’s own regulations. Zuni argued, how

ever, that the regulations themselves are inconsistent

with the authorizing statute. That statute, in its view,

requires the Department to calculate the 95th and 5th

percentile cutoffs solely on the basis of the number of

school districts (ranked by their per-pupil expenditures),

without any consideration of the number of pupils in those

districts. If calculated as Zuni urges, only 10 districts

(accounting for less than 2 percent of all students) would

have been identified as the outliers that the statute in

structs the Secretary to disregard. The difference, as a

result, between the highest and lowest per-pupil expendi

tures of the remaining districts (26.9 percent) would ex

ceed 25 percent. Consequently, the statute would forbid

New Mexico to take account of federal impact aid as it

decides how to equalize school funding across the State.

See N. M. Stat. Ann. §22–8–1 et seq. (2006).

A Department of Education Administrative Law Judge

rejected Zuni’s challenge to the regulations. The Secretary

of Education did the same. Zuni sought review of the

Secretary’s decision in the Court of Appeals for the Tenth

Circuit. 393 F. 3d 1158 (2004). Initially, a Tenth Circuit

panel affirmed the Secretary’s determination by a split

vote (2 to 1). Subsequently, the full Court of Appeals

vacated the panel’s decision and heard the matter en banc.

The 12-member en banc court affirmed the Secretary but

by an evenly divided court (6 to 6). 437 F. 3d 1289 (2006).

Zuni sought certiorari. We agreed to decide the matter.

Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

II

A

Zuni’s strongest argument rests upon the literal lan

guage of the statute. Zuni concedes, as it must, that if the

language of the statute is open or ambiguous—that is, if

Congress left a “gap” for the agency to fill—then we must

uphold the Secretary’s interpretation as long as it is rea

sonable. See Chevron U. S. A. Inc. v. Natural Resources

Defense Council, Inc., 467 U. S. 837, 842–843 (1984). See

also Christensen v. Harris County, 529 U. S. 576, 589, n.

(SCALIA, J., concurring in part and concurring in judg

ment). For purposes of exposition, we depart from a nor

mal order of discussion, namely an order that first consid

ers Zuni’s statutory language argument. See Barnhart v.

Sigmon Coal Co., 534 U. S. 438, 450 (2002). Instead,

because of the technical nature of the language in ques

tion, we shall first examine the provision’s background

and basic purposes. That discussion will illuminate our

subsequent analysis in Part II–B, infra. It will also reveal

why Zuni concentrates its argument upon language alone.

Considerations other than language provide us with

unusually strong indications that Congress intended to

leave the Secretary free to use the calculation method

before us and that the Secretary’s chosen method is a

reasonable one. For one thing, the matter at issue—i.e.,

the calculation method for determining whether a state

aid program “equalizes expenditures”—is the kind of

highly technical, specialized interstitial matter that Con

gress often does not decide itself, but delegates to special

ized agencies to decide. See United States v. Mead Corp.,

533 U. S. 218, 234 (2001); cf. MCI Telecommunications

Corp. v. American Telephone & Telegraph Co., 512 U. S.

218, 231, (1994); Christensen, supra, at 589, n. (opinion of

SCALIA, J.).

For another thing, the history of the statute strongly

supports the Secretary. Congress first enacted an impact

8 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

aid “equalization” exception in 1974. The exception origi

nally provided that the “ter[m] . . . ‘equaliz[ing] expendi

tures’ . . . shall be defined by the [Secretary].” 20 U. S. C.

§240(d)(2)(B) (1970 ed., Supp. IV). Soon thereafter, in

1976, the Secretary promulgated the regulation here at

issue defining the term “equalizing expenditures” in the

manner now before us. See Part I–B, supra. As far as we

can tell, no Member of Congress has ever criticized the

method the 1976 regulation sets forth nor suggested at

any time that it be revised or reconsidered.

The present statutory language originated in draft

legislation that the Secretary himself sent to Congress in

1994. With one minor change (irrelevant to the present

calculation controversy), Congress adopted that language

without comment or clarification. No one at the time—no

Member of Congress, no Department of Education official,

no school district or State—expressed the view that this

statutory language (which, after all, was supplied by the

Secretary) was intended to require, or did require, the

Secretary to change the Department’s system of calcula

tion, a system that the Department and school districts

across the Nation had followed for nearly 20 years, with

out (as far as we are told) any adverse effect.

Finally, viewed in terms of the purpose of the statute’s

disregard instruction, the Secretary’s calculation method

is reasonable, while the reasonableness of a method based

upon the number of districts alone (Zuni’s proposed

method) is more doubtful. When the Secretary (then

Commissioner) of Education considered the matter in

1976, he explained why that is so.

Initially the Secretary pointed out that the “exclusion of

the upper and bottom 5 percentile school districts is based

upon the accepted principle of statistical evaluation that

such percentiles usually represent unique or noncharacter

istic situations.” 41 Fed. Reg. 26320 (1976) (emphasis

added). That purpose, a purpose to exclude statistical

Cite as: 550 U. S. ____ (2007) 9

Opinion of the Court

outliers, is evident in the language of the present statute.

The provision uses the technical term “percentile”; it

refers to cutoff numbers (“95th” and “5th”) often associated

with scientific calculations; and it directly precedes an

other statutory provision that tells the Secretary to ac

count for those districts, from among the middle 5th to

95th percentile districts, that remain “noncharacteristic”

in respect to geography or the presence of special students

(such as disabled students). See 20 U. S. C.

§§7709(b)(2)(B)(i)–(ii).

The Secretary added that under the regulation’s calcula

tion system the “percentiles” would be “determined on the

basis of numbers of pupils and not on the basis of numbers

of districts.” 41 Fed. Reg. 26324. He said that to base “an

exclusion on numbers of districts” alone “would act to

apply the disparity standard in an unfair and inconsistent

manner among States.” Ibid. He then elaborated upon

his concerns:

“The purpose of the exclusion is to eliminate those

anomalous characteristics of a distribution of expendi

tures. In States with a small number of large dis

tricts, an exclusion based on percentage of school dis

tricts might exclude from the measure of disparity a

substantial percentage of the pupil population in

those States. Conversely, in States with large num

bers of small districts, such an approach might ex

clude only an insignificant fraction of the pupil popu

lation and would not exclude anomalous

characteristics.” Ibid.

To understand the Secretary’s first problem, consider an

exaggerated example, say a State with 80 school districts

of unequal size. Suppose 8 of the districts include urban

areas and together account for 70 percent of the State’s

students, while the remaining 72 districts include primar

ily rural areas and together account for 30 percent of the

10 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

State’s students. If the State’s greatest funding dispari

ties are among the 8 urban districts, Zuni’s calculation

method (which looks only at the number of districts and

ignores their size) would require the Secretary to disre

gard the system’s 8 largest districts (i.e., 10 percent of the

number 80) even though those 8 districts (because they

together contain 70 percent of the State’s pupils) are

typical of, indeed characterize, the State’s public school

system. It would require the Secretary instead to measure

the system’s expenditure equality by looking only to non-

characteristic districts that are not representative of the

system as a whole, indeed districts accounting for only 30

percent of the State’s pupils. Thus, according to Zuni’s

method, the Secretary would have to certify a state aid

program as one that “equalizes expenditures” even if there

were gross disparities in per-pupil expenditures among

urban districts accounting for 70 percent of the State’s

students. By way of contrast, the Secretary’s method, by

taking into account a district’s size as well as its expendi

tures, would avoid a calculation that would produce re

sults so contrary to the statute’s objective.

To understand the Secretary’s second problem consider

this very case. New Mexico’s 89 school districts vary

significantly in respect to the number of pupils each con

tains. Zuni’s calculation system nonetheless forbids the

Secretary to discount more than 10 districts—10 percent

of the total number of districts (rounded up). But these

districts taken together account for only 1.8 percent of the

State’s pupils. To eliminate only those districts, instead of

eliminating districts that together account for 10 percent

of the State’s pupils, risks resting the “disregard” calcula

tion upon a few particularly extreme noncharacteristic

districts, yet again contrary to the statute’s intent.

Thus, the history and purpose of the disregard instruc

tion indicate that the Secretary’s calculation formula is a

reasonable method that carries out Congress’ likely intent

Cite as: 550 U. S. ____ (2007) 11

Opinion of the Court

in enacting the statutory provision before us.

B

But what of the provision’s literal language? The mat

ter is important, for normally neither the legislative his

tory nor the reasonableness of the Secretary’s method

would be determinative if the plain language of the statute

unambiguously indicated that Congress sought to fore

close the Secretary’s interpretation. And Zuni argues that

the Secretary’s formula could not possibly effectuate Con

gress’ intent since the statute’s language literally forbids

the Secretary to use such a method. Under this Court’s

precedents, if the intent of Congress is clear and unambi

guously expressed by the statutory language at issue, that

would be the end of our analysis. See Chevron, 467 U. S.,

at 842–843. A customs statute that imposes a tariff on

“clothing” does not impose a tariff on automobiles, no

matter how strong the policy arguments for treating the

two kinds of goods alike. But we disagree with Zuni’s

conclusion, for we believe that the Secretary’s method falls

within the scope of the statute’s plain language.

That language says that, when the Secretary compares

(for a specified fiscal year) “the amount of per-pupil ex

penditures made by” (1) the highest-per-pupil-expenditure

district and (2) the lowest-per-pupil-expenditure district,

“the Secretary shall . . . disregard” local school districts

“with per-pupil expenditures . . . above the 95th percentile

or below the 5th percentile of such expenditures in the

State.” 20 U. S. C. §7709(b)(2)(B)(i). The word “such”

refers to “per-pupil expenditures” (or more precisely to

“per-pupil expenditures” in the test year specified by the

statute). The question then is whether the phrase “above

the 95th percentile . . . of . . . [per pupil] expenditures”

permits the Secretary to calculate percentiles by (1) rank

ing local districts, (2) noting the student population of

each district, and (3) determining the cutoff point on the

12 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

basis of districts containing 95 percent (or 5 percent) of the

State’s students.

Our answer is that this phrase, taken with absolute

literalness, limits the Secretary to calculation methods

that involve “per-pupil expenditures.” But it does not tell

the Secretary which of several different possible methods

the Department must use. Nor does it rule out the pre

sent formula, which distributes districts in accordance

with per-pupil expenditures, while essentially weighting

each district to reflect the number of pupils it contains.

Because the statute uses technical language (e.g., “per

centile”) and seeks a technical purpose (eliminating un

characteristic, or outlier, districts), we have examined

dictionary definitions of the term “percentile.” See 41 Fed.

Reg. 26320 (Congress intended measurements based upon

an “accepted principle of statistical evaluation” (emphasis

added)). Those definitions make clear that “percentile”

refers to a division of a distribution of some population

into 100 parts. Thus, Webster’s Third New International

Dictionary 1675 (1961) (Webster’s Third) defines “percen

tile” as “the value of the statistical variable that marks the

boundary between any two consecutive intervals in a

distribution of 100 intervals each containing one percent

of the total population.” A standard economics dictionary

gives a similar definition for “percentiles”:

“The values separating hundredth parts of a distribu

tion, arranged in order of size. The 99th percentile of

the income distribution, for example, is the income

level such that only one percent of the population

have larger incomes.” J. Black, A Dictionary of Eco

nomics 348–349 (2d ed. 2002).

A dictionary of mathematics states: “The n-th percentile is

the value xn/100 such that n per cent of the population is

less than or equal to xn/100.” It adds that “[t]he terms can

be modified, though not always very satisfactorily, to be

Cite as: 550 U. S. ____ (2007) 13

Opinion of the Court

applicable to a discrete random variable or to a large

sample ranked in ascending order.” C. Clapham & J.

Nicholson, The Concise Oxford Dictionary of Mathematics

378–379 (3d ed. 2005) (emphasis deleted). The American

Heritage Science Dictionary 468 (2005) explains that a

percentile is “[a]ny of the 100 equal parts into which the

range of the values of a set of data can be divided in order

to show the distribution of those values.” And Merriam-

Webster’s Medical Desk Dictionary 612 (2002) describes

percentile as “a value on a scale of one hundred that indi

cates the percent of a distribution that is equal to or below

it.”

These definitions, mainstream and technical, all indi

cate that, in order to identify the relevant percentile cut

offs, the Secretary must construct a distribution of values.

That distribution will consist of a “population” ranked

according to a characteristic. That characteristic takes on

a “value” for each member of the relevant population. The

statute’s instruction to identify the 95th and 5th “percen

tile of such expenditures” makes clear that the relevant

characteristic for ranking purposes is per-pupil expendi

ture during a particular year. But the statute does not

specify precisely what population is to be “distributed”

(i.e., ranked according to the population’s corresponding

values for the relevant characteristic). Nor does it set

forth various details as to how precisely the distribution is

to be constructed (as long as it is ranked according to the

specified characteristic).

But why is Congress’ silence in respect to these matters

significant? Are there several different populations, rele

vant here, that one might rank according to “per-pupil

expenditures” (and thereby determine in several different

ways a cutoff point such that “n percent of [that] popula

tion” falls, say below the percentile cutoff)? We are not

experts in statistics, but a statistician is not needed to see

what the dictionary does not say. No dictionary definition

14 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

we have found suggests that there is any single logical,

mathematical, or statistical link between, on the one

hand, the characterizing data (used for ranking purposes)

and, on the other hand, the nature of the relevant popula

tion or how that population might be weighted for pur

poses of determining a percentile cutoff.

Here, the Secretary has distributed districts, ranked

them according to per-pupil expenditure, but compared

only those that account for 90 percent of the State’s pupils.

Thus, the Secretary has used—as his predecessors had

done for a quarter century before him—the State’s stu

dents as the relevant population for calculating the speci

fied percentiles. Another Secretary might have distrib

uted districts, ranked them by per-pupil expenditure, and

made no reference to the number of pupils (a method that

satisfies the statute’s language but threatens the problems

the Secretary long ago identified, see 41 Fed. Reg. 26324;

supra, at 4–5). A third Secretary might have distributed

districts, ranked them by per-pupil expenditure, but com

pared only those that account for 90 percent of total pupil

expenditures in the State. A fourth Secretary might have

distributed districts, ranked them by per-pupil expendi

ture, but calculated the 95th and 5th percentile cutoffs

using the per-pupil expenditures of all the individual

schools in the State. See 41 Fed. Reg. 26324 (considering

this system of calculation). A fifth Secretary might have

distributed districts, ranked them by per-pupil expendi

ture, but accounted in his disparity calculation for the

sometimes significant differences in per-pupil spending at

different grade levels. See 34 CFR §222.162(b)(1) (2006)

(authorizing such a system); id., pt. 222, subpt. K, App.

See also Appendix B, infra.

Each of these methods amounts to a different way of

determining which districts fall between the 5th and 95th

“percentile of per-pupil expenditures.” For purposes of

that calculation, they each adopt different populations—

Cite as: 550 U. S. ____ (2007) 15

Opinion of the Court

students, districts, schools, and grade levels. Yet, linguis

tically speaking, one may attribute the characteristic of

per-pupil expenditure to each member of any such popula

tion (though the values of that characteristic may be more

or less readily available depending on the chosen popula

tion, see 41 Fed. Reg. 26324). Hence, the statute’s literal

language covers any or all of these methods. That lan

guage alone does not tell us (or the Secretary of Educa

tion), however, which method to use.

JUSTICE SCALIA’s claim that this interpretation “defies

any semblance of normal English” depends upon its own

definition of the word “per.” That word, according to the

dissent, “connotes . . . a single average figure assigned to a

unit the composite members of which are individual pu

pils.” Post, at 6 (dissenting opinion) (emphasis omitted).

In fact, the word “per” simply means “[f]or each” or “for

every.” Black’s Law Dictionary 1171 (8th ed. 1999); see

Webster’s Third 1674. Thus, nothing in the English lan

guage forbids the Secretary from considering expenditures

for each individual pupil in a district when instructed to

look at a district’s “per-pupil expenditures.” The remain

der of the dissent’s argument, colorful language to the

side, rests upon a reading of the statutory language that

ignores its basic purpose and history.

We find additional evidence for our understanding of the

language in the fact that Congress, in other statutes, has

clarified the matter here at issue thereby avoiding compa

rable ambiguity. For example, in a different education-

related statute, Congress refers to “the school at the 20th

percentile in the State, based on enrollment, among all

schools ranked by the percentage of students at the profi

cient level.” 20 U. S. C. §6311(b)(2)(E)(ii) (2000 ed., Supp.

IV) (emphasis added). In another statute fixing charges

for physicians services, Congress specified that the maxi

mum charge “shall be the 50th percentile of the customary

charges for the service (weighted by the frequency of the

16 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

service) performed by nonparticipating physicians in the

locality during the [prior] 12-month period.” 42 U. S. C.

§1395u(j)(1)(C)(v) (2000 ed.) (emphasis added). In these

statutes Congress indicated with greater specificity how a

percentile should be determined by stating precisely not

only which data values are of interest, but also (in the

first) the population that is to be distributed and (in the

second) the weightings needed to make the calculation

meaningful and to avoid counterproductive results. In the

statute at issue here, however, Congress used more gen

eral language (drafted by the Secretary himself), which

leaves the Secretary with the authority to resolve such

subsidiary matters at the administrative level.

We also find support for our view of the language in the

more general circumstance that statutory “[a]mbiguity is a

creature not [just] of definitional possibilities but [also] of

statutory context.” Brown v. Gardner, 513 U. S. 115, 118

(1994). See also FDA v. Brown & Williamson Tobacco

Corp., 529 U. S. 120, 132–133 (2000) (“[m]eaning—or

ambiguity—of certain words or phrases may only become

evident when placed in context” (emphasis added)). That

may be so even if statutory language is highly technical.

After all, the scope of what seems a precise technical chess

instruction, such as “you must place the queen next to the

king,” varies with context, depending, for example, upon

whether the instructor is telling a beginner how to set up

the board or telling an advanced player how to checkmate

an opponent. The dictionary acknowledges that, when

interpreting technical statistical language, the purpose of

the exercise matters, for it says that “quantile,” “percen

tile,” “quartile,” and “decile” are “terms [that] can be

modified, though not always very satisfactorily, to be

applicable to . . . a large sample ranked in ascending

order.” Oxford Dictionary of Mathematics, at 379.

Thus, an instruction to “identify schools with average

scholastic aptitude test scores below the 5th percentile of

Cite as: 550 U. S. ____ (2007) 17

Opinion of the Court

such scores” may vary as to the population to be distrib

uted, depending upon whether the context is one of provid

ing additional counseling and support to students at low-

performing schools (in which case the relevant population

would likely consist of students), or one of identifying

unsuccessful learning protocols at low-performing schools

(in which case the appropriate population may well be the

schools themselves). Context here tells us that the in

struction to identify school districts with “per-pupil expen

ditures” above the 95th percentile “of such expenditures”

is similarly ambiguous, because both students and school

districts are of concern to the statute. Accordingly, the

disregard instruction can include within its scope the

distribution of a ranked population that consists of pupils

(or of school districts weighted by pupils) and not just a

ranked distribution of unweighted school districts alone.

Finally, we draw reassurance from the fact that no

group of statisticians, nor any individual statistician, has

told us directly in briefs, or indirectly through citation,

that the language before us cannot be read as we have

read it. This circumstance is significant, for the statutory

language is technical, and we are not statisticians. And

the views of experts (or their absence) might help us un

derstand (though not control our determination of) what

Congress had in mind.

The upshot is that the language of the statute is broad

enough to permit the Secretary’s reading. That fact re

quires us to look beyond the language to determine

whether the Secretary’s interpretation is a reasonable,

hence permissible, implementation of the statute. See

Chevron, 467 U. S., at 842–843. For the reasons set forth

in Part II–A, supra, we conclude that the Secretary’s

reading is a reasonable reading. We consequently find the

Secretary’s method of calculation lawful.

The judgment of the Tenth Circuit is affirmed.

It is so ordered.

18 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix A to opinion of the Court

APPENDIXES TO OPINION OF THE COURT

A

We set out the relevant statutory provisions and accom

panying regulations in full. The reader will note that in

the text of our opinion, for purposes of exposition, we use

the term “local school districts” where the statute refers to

“local educational agencies.” We also disregard the stat

ute’s frequent references to local “revenues” because those

references do not raise any additional considerations

germane to this case.

Impact Aid Program, 20 U. S. C. §7709 (2000 ed. and

Supp. IV) (State consideration of payments in providing

state aid):

“(a) General prohibition

“Except as provided in subsection (b) of this section,

a State may not—

“(1) consider payments under this subchapter in

determining for any fiscal year—

“(A) the eligibility of a local educational

agency for State aid for free public education;

or

“(B) the amount of such aid; or

“(2) make such aid available to local educational

agencies in a manner that results in less State

aid to any local educational agency that is eligible

for such payment than such agency would receive

if such agency were not so eligible.

“(b) State equalization plans

“(1) In general

“A State may reduce State aid to a local educa

Cite as: 550 U. S. ____ (2007) 19

Appendix A to opinion of the Court

tional agency that receives a payment under sec

tion 7702 or 7703(b) of this title (except the

amount calculated in excess of 1.0 under section

7703(a)(2)(B) of this title and, with respect to a

local educational agency that receives a payment

under section 7703(b)(2) of this title, the amount

in excess of the amount that the agency would re

ceive if the agency were deemed to be an agency

eligible to receive a payment under section

7703(b)(1) of this title and not section 7703(b)(2)

of this title) for any fiscal year if the Secretary de

termines, and certifies under subsection (c)(3)(A)

of this section, that the State has in effect a pro

gram of State aid that equalizes expenditures for

free public education among local educational

agencies in the State.

“(2) Computation

“(A) In general

“For purposes of paragraph (1), a program

of State aid equalizes expenditures among lo

cal educational agencies if, in the second fiscal

year preceding the fiscal year for which the

determination is made, the amount of per-

pupil expenditures made by, or per-pupil

revenues available to, the local educational

agency in the State with the highest such per-

pupil expenditures or revenues did not exceed

the amount of such per-pupil expenditures

made by, or per-pupil revenues available to,

the local educational agency in the State with

the lowest such expenditures or revenues by

more than 25 percent.

“(B) Other factors

In making a determination under this subsec-

20 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix B to opinion of the Court

tion, the Secretary shall—

“(i) disregard local educational agencies

with per-pupil expenditures or revenues

above the 95th percentile or below the 5th

percentile of such expenditures or reve

nues in the State; and

“(ii) take into account the extent to which

a program of State aid reflects the ad

ditional cost of providing free public edu

cation in particular types of local educa

tional agencies, such as those that are

geographically isolated, or to particular

types of students, such as children with

disabilities.”

B

34 CFR §222.162 (2006) (What disparity standard must a

State meet in order to be certified and how are disparities

in current expenditures or revenues per pupil measured?):

“(a) Percentage disparity limitation. The Secretary

considers that a State aid program equalizes expendi

tures if the disparity in the amount of current expen

ditures or revenues per pupil for free public education

among LEAs in the State is no more than 25 percent.

In determining the disparity percentage, the Secre

tary disregards LEAs with per pupil expenditures or

revenues above the 95th or below the 5th percentile of

those expenditures or revenues in the State. The

method for calculating the percentage of disparity in a

State is in the appendix to this subpart.

“(b)(1) Weighted average disparity for different

grade level groups. If a State requests it, the Secre

tary will make separate disparity computations for

different groups of LEAs in the State that have simi

lar grade levels of instruction.

Cite as: 550 U. S. ____ (2007) 21

Appendix B to opinion of the Court

“(2) In those cases, the weighted average disparity

for all groups, based on the proportionate number of

pupils in each group, may not be more than the per

centage provided in paragraph (a) of this section. The

method for calculating the weighted average disparity

percentage is set out in the appendix to this subpart.

“(c) Per pupil figure computations. In calculating

the current expenditures or revenue disparities under

this section, computations of per pupil figures are

made on one of the following bases:

“(1) The per pupil amount of current expenditures

or revenue for an LEA is computed on the basis of the

total number of pupils receiving free public education

in the schools of the agency. The total number of pu

pils is determined in accordance with whatever stan

dard measurement of pupil count is used in the

State.”

34 CFR pt. 222, subpt. K, App. (2006) (Methods of Calcula

tions for Treatment of Impact Aid Payments Under State

Equalization Programs):

“The following paragraphs describe the methods for

making certain calculations in conjunction with de

terminations made under the regulations in this sub

part. Except as otherwise provided in the regulations,

these methods are the only methods that may be used

in making these calculations.

“1. Determinations of disparity standard compli

ance under § 222.162(b)(1).

“(a) The determinations of disparity in current ex

penditures or revenue per pupil are made by—

“(i) Ranking all LEAs having similar grade levels

within the State on the basis of current expenditures

or revenue per pupil for the second preceding fiscal

22 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix B to opinion of the Court

year before the year of determination;

“(ii) Identifying those LEAs in each ranking that

fall at the 95th and 5th percentiles of the total num

ber of pupils in attendance in the schools of those

LEAs; and

“(iii) Subtracting the lower current expenditure or

revenue per pupil figure from the higher for those

agencies identified in paragraph (ii) and dividing the

difference by the lower figure.

. . . . .

“(b) In cases under §222.162(b), where separate

computations are made for different groups of LEAs,

the disparity percentage for each group is obtained in

the manner described in paragraph (a) above. Then

the weighted average disparity percentage for the

State as a whole is determined by—

“(i) Multiplying the disparity percentage for each

group by the total number of pupils receiving free

public education in the schools in that group;

“(ii) Summing the figures obtained in paragraph

(b)(i); and

“(iii) Dividing the sum obtained in paragraph (b)(ii)

by the total number of pupils for all the groups.

EXAMPLE

Group 1 (grades 1–6), 80,000 pupils x 18% = 14,400

Group 2 (grades 7–12), 100,000 pupils x 22% = 22,000

Group 3 (grades 1–12), 20,000 pupils x 35% = 7,000

Total 200,000 pupils ....................................... 43,400

43,400/200,000=21.70% Disparity

”

Cite as: 550 U. S. ____ (2007) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1508

_________________

ZUNI PUBLIC SCHOOL DISTRICT NO. 89, ET AL.,

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE STEVENS, concurring.

In his oft-cited opinion for the Court in Griffin v. Oce

anic Contractors, Inc., 458 U. S. 564, 571 (1982), then-

Justice Rehnquist wisely acknowledged that “in rare cases

the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters,

and those intentions must be controlling.” And in United

States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 242

(1989), the Court began its analysis of the question of

statutory construction by restating the proposition that

“[i]n such cases, the intention of the drafters, rather than

the strict language, controls.” JUSTICE SCALIA provided

the decisive fifth vote for the majority in that case.

Today he correctly observes that a judicial decision that

departs from statutory text may represent “policy-driven

interpretation.” Post, at 3 (dissenting opinion). As long as

that driving policy is faithful to the intent of Congress (or,

as in this case, aims only to give effect to such intent)—

which it must be if it is to override a strict interpretation

of the text—the decision is also a correct performance of

the judicial function. JUSTICE SCALIA’s argument today

rests on the incorrect premise that every policy-driven

interpretation implements a judge’s personal view of

sound policy, rather than a faithful attempt to carry out

2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

STEVENS, J., concurring

the will of the legislature. Quite the contrary is true of the

work of the judges with whom I have worked for many

years. If we presume that our judges are intellectually

honest—as I do—there is no reason to fear “policy-driven

interpretation[s]” of Acts of Congress.

In Chevron U. S. A. Inc. v. Natural Resources Defense

Council, Inc., 467 U. S. 837, 842 (1984), we acknowledged

that when “the intent of Congress is clear [from the statu

tory text], that is the end of the matter.” But we also

made quite clear that “administrative constructions which

are contrary to clear congressional intent” must be re

jected. Id., at 843, n. 9. In that unanimous opinion, we

explained:

“If a court, employing traditional tools of statutory

construction, ascertains that Congress had an inten

tion on the precise question at issue, that intention is

the law and must be given effect.” Ibid.

Analysis of legislative history is, of course, a traditional

tool of statutory construction.1 There is no reason why we

must confine ourselves to, or begin our analysis with, the

statutory text if other tools of statutory construction pro

vide better evidence of congressional intent with respect to

the precise point at issue.

As the Court’s opinion demonstrates, this is a quintes

sential example of a case in which the statutory text was

obviously enacted to adopt the rule that the Secretary

administered both before and after the enactment of the

rather confusing language found in 20 U. S. C.

§7709(b)(2)(B)(i). See ante, at 7–8. That text is suffi

ciently ambiguous to justify the Court’s exegesis, but my

own vote is the product of a more direct route to the

Court’s patently correct conclusion. This happens to be a

——————

1 See, e.g., Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 610,

n. 4 (1991); Steelworkers v. Weber, 443 U. S. 193, 230–253 (1979)

(Rehnquist, J., dissenting).

Cite as: 550 U. S. ____ (2007) 3

STEVENS, J., concurring

case in which the legislative history is pellucidly clear and

the statutory text is difficult to fathom.2 Moreover, it is a

case in which I cannot imagine anyone accusing any

Member of the Court of voting one way or the other be

cause of that Justice’s own policy preferences.

Given the clarity of the evidence of Congress’ “intention

on the precise question at issue,” I would affirm the judg

ment of the Court of Appeals even if I thought that peti

tioners’ literal reading of the statutory text was correct.3

The only “policy” by which I have been driven is that

which this Court has endorsed on repeated occasions

regarding the importance of remaining faithful to Con

gress’ intent.

——————

2 Contrary to JUSTICE SCALIA, I find it far more likely that the Con

gress that voted “without comment or clarification,” ante, at 8 (majority

opinion), to adopt the 1994 statutory language relied on the endorse

ment of its sponsors, who introduced the legislation “on behalf of the

administration,” see 139 Cong. Rec. 23416 (1993) (remarks of Sen.

Kennedy) and id., at 23514 (remarks of Sen. Jeffords), and the fact that

such language was drafted and proposed by the U. S. Department of

Education, rather than a parsing of its obscure statutory text.

Moreover, I assume that, regardless of the statutory language’s sup

posed clarity, any competent counsel challenging the validity of a

presumptively valid federal regulation would examine the legislative

history of its authorizing statute before filing suit.

3 See Church of Holy Trinity v. United States, 143 U. S. 457, 459

(1892) (“It is a familiar rule, that a thing may be within the letter of the

statute and yet not within the statute, because not within its spirit, nor

within the intention of its makers”).

Cite as: 550 U. S. ____ (2007) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1508

_________________

ZUNI PUBLIC SCHOOL DISTRICT NO. 89, ET AL.,

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE KENNEDY, with whom JUSTICE ALITO joins,

concurring.

The district courts and courts of appeals, as well as this

Court, should follow the framework set forth in Chevron

U. S. A. Inc. v. Natural Resources Defense Council, Inc.,

467 U. S. 837 (1984), even when departure from that

framework might serve purposes of exposition. When

considering an administrative agency’s interpretation of a

statute, a court first determines “whether Congress has

directly spoken to the precise question at issue.” Id., at

842. If so, “that is the end of the matter.” Ibid. Only if

“Congress has not directly addressed the precise question

at issue” should a court consider “whether the agency’s

answer is based on a permissible construction of the stat

ute.” Id., at 843.

In this case, the Court is correct to find that the plain

language of the statute is ambiguous. It is proper, there

fore, to invoke Chevron’s rule of deference. The opinion of

the Court, however, inverts Chevron’s logical progression.

Were the inversion to become systemic, it would create the

impression that agency policy concerns, rather than the

traditional tools of statutory construction, are shaping the

judicial interpretation of statutes. It is our obligation to

set a good example; and so, in my view, it would have been

2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

KENNEDY, J., concurring

preferable, and more faithful to Chevron, to arrange the

opinion differently. Still, we must give deference to the

author of an opinion in matters of exposition; and because

the point does not affect the outcome, I join the Court’s

opinion.

Cite as: 550 U. S. ____ (2007) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1508

_________________

ZUNI PUBLIC SCHOOL DISTRICT NO. 89, ET AL.,

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and

JUSTICE THOMAS join, and with whom JUSTICE SOUTER

joins as to Part I, dissenting.

In Church of the Holy Trinity v. United States, 143 U. S.

457 (1892), this Court conceded that a church’s act of

contracting with a prospective rector fell within the plain

meaning of a federal labor statute, but nevertheless did

not apply the statute to the church: “It is a familiar rule,”

the Court pronounced, “that a thing may be within the

letter of the statute and yet not within the statute, be

cause not within its spirit, nor within the intention of its

makers.” Id., at 459. That is a judge-empowering proposi

tion if there ever was one, and in the century since, the

Court has wisely retreated from it, in words if not always

in actions. But today Church of the Holy Trinity arises,

Phoenix-like, from the ashes. The Court’s contrary asser

tions aside, today’s decision is nothing other than the

elevation of judge-supposed legislative intent over clear

statutory text. The plain language of the federal Impact

Aid statute clearly and unambiguously forecloses the

Secretary of Education’s preferred methodology for deter

mining whether a State’s school-funding system is equal

ized. Her selection of that methodology is therefore enti

tled to zero deference under Chevron U. S. A. Inc. v.

2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

Natural Resources Defense Council, Inc., 467 U. S. 837

(1984).

I

The very structure of the Court’s opinion provides an

obvious clue as to what is afoot. The opinion purports to

place a premium on the plain text of the Impact Aid stat

ute, ante, at 11, but it first takes us instead on a round

about tour of “[c]onsiderations other than language,” ante,

at 7 (emphasis added)—page after page of unenacted

congressional intent and judicially perceived statutory

purpose, Part II–A, ante. Only after we are shown “why

Zuni concentrates its argument upon language alone,”

ante, at 7 (impliedly a shameful practice, or at least indi

cation of a feeble case), are we informed how the statute’s

plain text does not unambiguously preclude the interpre

tation the Court thinks best. Part II–B, ante (beginning

“But what of the provision’s literal language? The matter

is important . . . ”). This is a most suspicious order of

proceeding, since our case law is full of statements such as

“We begin, as always, with the language of the statute,”

Duncan v. Walker, 533 U. S. 167, 172 (2001), and replete

with the affirmation that, when “[g]iven [a] straightfor

ward statutory command, there is no reason to resort to

legislative history,” United States v. Gonzales, 520 U. S. 1,

6 (1997). Nor is this cart-before-the-horse approach justi

fied by the Court’s excuse that the statute before us is,

after all, a technical one, ante, at 7. This Court, charged

with interpreting, among other things, the Internal Reve

nue Code, the Employee Retirement Income Security Act

of 1974, and the Clean Air Act, confronts technical lan

guage all the time, but we never see fit to pronounce upon

what we think Congress meant a statute to say, and what

we think sound policy would counsel it to say, before con

sidering what it does say. As almost a majority of today’s

majority worries, “[w]ere the inversion [of inquiry] to

Cite as: 550 U. S. ____ (2007) 3

SCALIA, J., dissenting

become systemic, it would create the impression that

agency policy concerns, rather than the traditional tools of

statutory construction, are shaping the judicial interpreta

tion of statutes.” Ante, at 1 (KENNEDY, J., joined by ALITO,

J., concurring). True enough—except I see no reason to

wait for the distortion to become systemic before conclud

ing that that is precisely what is happening in the present

case. For some, policy-driven interpretation is apparently

just fine. See ante, at 1–2 (STEVENS, J., concurring). But

for everyone else, let us return to Statutory Interpretation

101.

We must begin, as we always do, with the text. See, e.g.,

Gonzales, supra, at 4. Under the federal Impact Aid pro

gram, 20 U. S. C. §7701 et seq. (2000 ed. and Supp. IV),

States distributing state aid to local school districts (re

ferred to in the statute as “local educational agencies,” or

“LEAs”1) may not take into account the amount of federal

Impact Aid that its LEAs receive. See §7709(a). But the

statute makes an exception if the Secretary of Education

certifies that a State “has in effect a program of State aid

that equalizes expenditures for free public education

among local educational agencies in the State.”

§7709(b)(1) (2000 ed., Supp. IV). Congress has specified a

formula for the Secretary to use when making this equali

zation determination:

“[A] program of State aid equalizes expenditures

among local educational agencies if . . . the amount of

per-pupil expenditures made by, or per-pupil revenues

available to, the local educational agency in the State

with the highest such per-pupil expenditures or reve

nues did not exceed the amount of such per-pupil ex

——————

1 The Court’s opinion has replaced the phrase “ ‘local educational

agencies’ ” with “ ‘local school districts.’ ” See ante, at 19. While I have

no objection to that terminology, I will instead use “local educational

agencies” and “LEAs.”

4 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

penditures made by, or per-pupil revenues available

to, the local educational agency in the State with the

lowest such expenditures or revenues by more than 25

percent.” §7709(b)(2)(A).

The Secretary is further instructed, however, that when

making this determination, she shall “disregard local

educational agencies with per-pupil expenditures or reve

nues above the 95th percentile or below the 5th percentile

of such expenditures or revenues in the State.”

§7709(b)(2)(B)(i). It is this latter subsection which con

cerns us here.

The casual observer will notice that the Secretary’s

implementing regulations do not look much like the stat

ute. The regulations first require the Secretary to rank all

of the LEAs in a State (New Mexico has 89) according to

their per-pupil expenditures or revenues. 34 CFR pt. 222,

subpt. K, App. ¶(1)(a)(i) (2006). So far so good. But criti

cally here, the Secretary must then “[i]dentif[y] those

LEAs . . . that fall at the 95th and 5th percentiles of the

total number of pupils in attendance in the schools of those

LEAs.” Id., ¶(1)(a)(ii) (emphasis added). Finally, the

Secretary compares the per-pupil figures of those two

LEAs for the purpose of assessing whether a State exceeds

the 25% disparity measure. Id., ¶(1)(a)(iii). The majority

concludes that this method of calculation, with its focus on

student population, is a permissible interpretation of the

statute.

It most assuredly is not. To understand why, one first

must look beyond the smokescreen that the Court lays

down with its repeated apologies for inexperience in sta

tistics, and its endless recitation of technical mathematical

definitions of the word “percentile.” See, e.g., ante, at 12–

13 (“ ‘The n-th percentile is the value xn/100 such that n per

cent of the population is less than or equal to xn/100.’ ” (quot

ing C. Clapham & J. Nicholson, The Concise Oxford Dic

Cite as: 550 U. S. ____ (2007) 5

SCALIA, J., dissenting

tionary of Mathematics 378 (3d ed. 2005))). This case is

not a scary math problem; it is a straightforward matter of

statutory interpretation. And we do not need the Court’s

hypothetical cadre of number-crunching amici, ante, at 17,

to guide our way.

There is no dispute that for purposes relevant here

“ ‘percentile’ refers to a division of a distribution of some

population into 100 parts.’ ” Ante, at 12. And there is

further no dispute that the statute concerns the percentile

of “per-pupil expenditures or revenues,” for that is what

the word “such” refers to. See 20 U. S. C. §7709(b)(2)(B)(i)

(Secretary shall “disregard local educational agencies with

per-pupil expenditures or revenues above the 95th percen

tile or below the 5th percentile of such expenditures or

revenues in the State” (emphasis added)). The question is:

Whose per-pupil expenditures or revenues? Or, in the

Court’s terminology, what “population” is assigned the

“characteristic” “per-pupil expenditure or revenue”? Ante,

at 13. At first blush, second blush, or twenty-second

blush, the answer is abundantly clear: local educational

agencies. The statute requires the Secretary to “disregard

local educational agencies with” certain per-pupil figures

above or below specified percentiles of those per-pupil

figures. §7709(b)(2)(B)(i). The attribute “per-pupil expen

ditur[e] or revenu[e]” is assigned to LEAs—there is no

mention of student population whatsoever. And thus

under the statute, “per-pupil expenditures or revenues”

are to be arrayed using a population consisting of LEAs, so

that percentiles are determined from a list of (in New

Mexico) 89 per-pupil expenditures or revenues represent

ing the 89 LEAs in the State. It is just that simple.

The Court makes little effort to defend the regulations

as they are written. Instead, relying on a made-for

litigation theory that bears almost no relationship to the

regulations themselves, the Court believes it has found a

way to shoehorn those regulations into the statute. The

6 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

Impact Aid statute is ambiguous, the Court says, because

it “does not specify precisely what population is to be

‘distributed’ (i.e., ranked according to the population’s

corresponding values for the relevant characteristic).”

Ante, at 13. Thus the Court finds that it is permissible for

the Secretary to attribute the characteristic “per-pupil

expenditure or revenue” to pupils, with the result that the

Secretary may “us[e] . . . the State’s students as the rele

vant population for calculating the specified percentiles.”

Ante, at 14. Under that interpretation, as the State man

ages to explain with a straight face, “[i]n New Mexico,

during the time at issue, there were approximately

317,777 pupils in the [S]tate and thus there were 317,777

per-pupil revenues in the [S]tate.” Brief for Respondent

New Mexico Public Education Department 37; see also id.,

at 36 (“Each and every student in an LEA and in a [S]tate

may be treated as having his or her own ‘per-pupil’ expen

diture or revenue amount”). The Court consequently

concludes that “linguistically speaking, one may attribute

the characteristic of per-pupil expenditure to each [stu

dent].” Ante, at 15.

The sheer applesauce of this statutory interpretation

should be obvious. It is of course true that every student

in New Mexico causes an expenditure or produces a reve

nue that his LEA either enjoys (in the case of revenues) or

is responsible for (in the case of expenditures). But it

simply defies any semblance of normal English usage to

say that every pupil has a “per-pupil expenditure or reve

nue.” The word “per” connotes that the expenditure or

revenue is a single average figure assigned to a unit the

composite members of which are individual pupils. And

the only such unit mentioned in the statute is the local

educational agency.2 See 20 U. S. C. §7709(b)(2)(B)(i). It

——————

2 The Court maintains that the phrase “per-pupil expenditures or

revenues” may also be attributed to schools or grade levels. Ante, at 14.

Cite as: 550 U. S. ____ (2007) 7

SCALIA, J., dissenting

is simply irrelevant that “[n]o dictionary definition . . .

suggests that there is any single logical, mathematical, or

statistical link between [per-pupil expenditures or reve

nues] and . . . the nature of the relevant population.” Ante,

at 13–14. Of course there is not. It is the text at issue

which must identify the relevant population, and it does so

here quite unambiguously: “local educational agencies

with per-pupil expenditures or revenues.”

§7709(b)(2)(B)(i) (emphasis added). That same phrase

shows the utter irrelevance of the Court’s excursus upon

the meaning of the word “per.” See ante, at 15. It does

indeed mean “ ‘for each or ‘for every’ ”—and when it is

contained in a clause that reads “local educational agen

cies with per-pupil expenditures or revenues” it refers to

(and can only refer to) the average expenditure or revenue

“for each” or “for every” student out of the total expendi

tures or revenues of the LEA.

The violence done to this statute would be severe

enough if the Secretary used the actual expenditure or

revenue for each individual pupil. But in fact the Secre

tary determines the per-pupil expenditure or revenue for

each individual student by (guess what) computing the

per-pupil expenditure or revenue of each LEA! As the New

Mexico brief explains:

“[A] per-pupil expenditure or revenue is an average

number. It is not the amount actually spent on any

given pupil, an amount which would be impossible to

calculate in any meaningful way. It is roughly the to

tal amount expended by an LEA divided by the num

——————

Standing alone and abstracted from the rest of the statute, indeed it

may. But not when it appears in the phrase “local educational agencies

with per-pupil expenditures or revenues.” (Emphasis added.) In any

case, the fact that “per-pupil expenditures or revenues” could be ap

plied to composite entities other than LEAs does not establish that

speaking of the “per-pupil expenditure or revenue” of an individual

student makes any sense (it does not).

8 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

ber of pupils in that LEA.” Brief for Respondent New

Mexico Public Education Department 36.

The Secretary thus assigns an artificial number to each

student that corresponds exactly to his LEA’s per-pupil

expenditure or revenue. In other words, at the end of the

day the Secretary herself acknowledges that “per-pupil

expenditures or revenues” pertains to LEAs, and not

students. And she is interpreting “per-pupil expenditure

or revenue” not as the Court suggests (an amount attrib

utable to each student), but rather as I suggest (an aver

age amount for the pupils in a particular LEA). But she

then proceeds to take a step not at all permitted by the

statutory formula—in effect applying “per-pupil expendi

ture or revenue” a second time (this time according to the

Court’s fanciful interpretation of “per-pupil”) in order to

reach the result she desires. Of course, if the Secretary

did apply the “per-pupil expenditure or revenue” only

once, arraying students by their actual expenditures or

revenues, her entire system would collapse. Students

from the same LEA, rather than appearing on the list with

the same per-pupil figure, would be located at various

points on the spectrum. And so long as an LEA had at

least one student above the 95th or below the 5th percen

tile of pupil “per-pupil expenditures or revenues,” that

LEA would have to be excluded from the disparity analy

sis. The result would be a serious distortion of the dispar

ity determination, excluding many more LEAs (in fact,

perhaps all of them) from the disparity calculation. This

would render the 25% disparity measure in §7709(b)(2)(A)

all but meaningless.

The Court makes one final attempt to rescue the Secre

tary’s interpretation, appealing to “statutory context.”

“Context here tells us,” it says, “that the instruction to

identify school districts with ‘per-pupil expenditures’

above the 95th percentile ‘of such expenditures’ is . . .

Cite as: 550 U. S. ____ (2007) 9

SCALIA, J., dissenting

ambiguous, because both students and school districts are

of concern to the statute.” Ante, at 17. This is a complete

non sequitur. Of course students are a concern to a stat

ute dealing with school funding. But that does not create

any ambiguity with respect to whether, under this statute,

pupils can reasonably be said to have their own “per-pupil

expenditures or revenues.” It is simply irrational to say

that the clear dispositions of a statute with regard to the

entities that it regulates (here LEAs) are rendered am

biguous when those entities contain sub-units that are the

ultimate beneficiaries of the regulation (here students).

Such a principle of interpretation—if it could be called

that—would inject ambiguity into many statutes indeed.

The Court’s reliance on statutory context is all the more

puzzling since the context obviously favors petitioners.

“The focus [of the Impact Aid statute] is upon LEAs, not

upon the number of pupils.” 393 F. 3d 1158, 1172 (CA10

2004) (O’Brien, J., dissenting), opinion vacated, 437 F. 3d

1289, 1290 (2006) (en banc) (per curiam). In fact, the

provisions at issue here make not the slightest mention of

students. That is both sensible and predictable, since the

Impact Aid program’s equalization formula is designed to

address funding disparities between LEAs, not between

students. See 20 U. S. C. §7709(b)(2)(A) (referring to “a

program of State aid [that] equalizes expenditures among

local educational agencies”); see also §7709(d)(1). Indeed,

the whole point of the equalization determination is to

figure out whether States may reduce state aid to LEAs.

See §7709(a).

In sum, the plain language of the Impact Aid statute

compels the conclusion that the Secretary’s method of

calculation is ultra vires. Employing the formula that the

statute requires, New Mexico is not equalized. Ante, at 6.

II

How then, if the text is so clear, are respondents manag

10 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

ing to win this case? The answer can only be the return of

that miraculous redeemer of lost causes, Church of the

Holy Trinity. In order to contort the statute’s language

beyond recognition, the Court must believe Congress’s

intent so crystalline, the spirit of its legislation so glow

ingly bright, that the statutory text should simply not be

read to say what it says. See Part II–A, ante. JUSTICE

STEVENS is quite candid on the point: He is willing to

contradict the text. See ante, at 2–3 (concurring opinion).3

But JUSTICE STEVENS’ candor should not make his phi

losophy seem unassuming. He maintains that it is “a

correct performance of the judicial function” to “override a

strict interpretation of the text” so long as policy-driven

interpretation “is faithful to the intent of Congress.” Ante,

at 1. But once one departs from “strict interpretation of

the text” (by which JUSTICE STEVENS means the actual

meaning of the text) fidelity to the intent of Congress is a

chancy thing. The only thing we know for certain both

Houses of Congress (and the President, if he signed the

legislation) agreed upon is the text. Legislative history

can never produce a “pellucidly clear” picture, ante, at 3

(STEVENS, J., concurring), of what a law was “intended” to

mean, for the simple reason that it is never voted upon—

or ordinarily even seen or heard—by the “intending” law-

giving entity, which consists of both Houses of Congress

——————

3 Like JUSTICE STEVENS, respondents themselves were aboveboard

when they litigated this case at the administrative level. After hearing

argument from the Department of Education, the Administrative Law

Judge (ALJ) protested: “The problem is I don’t see the ambiguity of the

statute.” App. 29. To this the Department’s counsel responded: “The

only way I can do that is by reference to the statutory purpose.” Ibid.

Later in the hearing, the ALJ similarly asked the State of New Mexico

how its interpretation was consistent with the statute. The State

answered: “Literally, on the face of the words, perhaps not, probably

not.” Id., at 53. Despite his misgivings, the ALJ ultimately decided

that he did not possess the authority to invalidate the regulations.

App. to Pet. for Cert. 38a, 51a.

Cite as: 550 U. S. ____ (2007) 11

SCALIA, J., dissenting

and the President (if he did not veto the bill). See U. S.

Const., Art. I, §§1, 7. Thus, what judges believe Congress

“meant” (apart from the text) has a disturbing but entirely

unsurprising tendency to be whatever judges think Con

gress must have meant, i.e., should have meant. In

Church of the Holy Trinity, every Justice on this Court

disregarded the plain language of a statute that forbade

the hiring of a clergyman from abroad because, after all

(they thought), “this is a Christian nation,” 143 U. S., at

471, so Congress could not have meant what it said. Is

there any reason to believe that those Justices were lack

ing that “intellectua[l] honest[y]” that JUSTICE STEVENS

“presume[s]” all our judges possess, ante, at 2? Intellec

tual honesty does not exclude a blinding intellectual bias.

And even if it did, the system of judicial amendatory veto

over texts duly adopted by Congress bears no resemblance

to the system of lawmaking set forth in our Constitution.

JUSTICE STEVENS takes comfort in the fact that this is a

case in which he “cannot imagine anyone accusing any

Member of the Court of voting one way or the other be

cause of that Justice’s own policy preferences.” Ante, at 3.

I can readily imagine it, given that the Court’s opinion

begins with a lengthy description of why the system its

judgment approves is the better one. But even assuming

that, in this rare case, the Justices’ departure from the

enacted law has nothing to do with their policy view that

it is a bad law, nothing in JUSTICE STEVENS’ separate

opinion limits his approach to such rarities. Why should

we suppose that in matters more likely to arouse the

judicial libido—voting rights, antidiscrimination laws, or

environmental protection, to name only a few—a judge in

the School of Textual Subversion would not find it conven

ient (yea, righteous!) to assume that Congress must have

meant, not what it said, but what he knows to be best?

Lest there be any confusion on the point, I must discuss

briefly the two cases JUSTICE STEVENS puts forward, ante,

12 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

at 1, as demonstrating this Court’s recent endorsement of

his unorthodox views. They demonstrate just the oppo

site. Griffin v. Oceanic Contractors, Inc., 458 U. S. 564

(1982), involved a maritime statute that required the

master of a vessel to furnish unpaid wages to a seaman

within a specified period after the seaman’s discharge, and

further provided that a master who failed to do so without

sufficient cause “ ‘shall pay to the seaman a sum equal to

two days’ pay for each and every day during which pay

ment is delayed.’ ” Id., at 570 (quoting 46 U. S. C. §596

(1976 ed.)). We explained that “Congress intended the

statute to mean exactly what its plain language says,” 458

U. S., at 574, and held that the seaman was entitled to

double wages for every day during which payment was

delayed, even for the period in which he had obtained

alternative employment. The result was that the seaman

would receive approximately $300,000 for his master’s

improper withholding of $412.50, id., at 575, even though

“[i]t [was] probably true that Congress did not precisely

envision the grossness of the difference . . . between the

actual wages withheld and the amount of the award re

quired by the statute,” id., at 576. We suggested in dicta

that there might be a “rare cas[e]” in which the Court

could relax its steadfastness to statutory text, id., at 571,

but if Griffin itself did not qualify, it is hard to imagine

what would. The principle JUSTICE STEVENS would as

cribe to Griffin is in fact the one he advocated in dissent.

“[T]his is one of the cases in which the exercise of judg

ment dictates a departure from the literal text in order to

be faithful to the legislative will.” Id., at 586 (STEVENS, J.,

dissenting).

The second case JUSTICE STEVENS relies upon, United

States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989),

is equally inapt. The Court’s opinion there (unlike the one

here) explained that our analysis “must begin . . . with the

language of the statute itself,” and concluded that that

Cite as: 550 U. S. ____ (2007) 13

SCALIA, J., dissenting

was “also where the inquiry should end, for where . . . the

statute’s language is plain, ‘the sole function of the courts

is to enforce it according to its terms.’ ” Id., at 241 (quot

ing Caminetti v. United States, 242 U. S. 470, 485 (1917)).

My “fifth vote” in Ron Pair was thus only “decisive,” ante,

at 1 (STEVENS, J., concurring), in reaffirming this Court’s

adherence to statutory text, decisively preventing it from

falling off the precipice it plunges over today.

Contrary to the Court and JUSTICE STEVENS, I do not

believe that what we are sure the Legislature meant to say

can trump what it did say. Citizens arrange their affairs

not on the basis of their legislators’ unexpressed intent,

but on the basis of the law as it is written and promul

gated. I think it terribly unfair to expect that the two

rural school districts who are petitioners here should have

pored over some 30 years of regulatory history to divine

Congress’s “real” objective (and with it the “real” intent

that a majority of Justices would find honest and true). To

be governed by legislated text rather than legislators’

intentions is what it means to be “a Government of laws,

not of men.” And in the last analysis the opposite ap

proach is no more beneficial to the governors than it is to

the governed. By “depriving legislators of the assurance

that ordinary terms, used in an ordinary context, will be

given a predictable meaning,” we deprive Congress of “a

sure means by which it may work the people’s will.” Chi

som v. Roemer, 501 U. S. 380, 417 (1991) (SCALIA, J.,

dissenting).

I do not purport to know what Congress thought it was

doing when it amended the Impact Aid program in 1994.

But even indulging JUSTICE STEVENS’ erroneous premise

that there exists a “legislative intent” separate and apart

from the statutory text, ante, at 1 (concurring opinion), I

do not see how the Court can possibly say, with any meas

ure of confidence, that Congress wished one thing rather

than another. There is ample evidence, for example, that

14 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

at the time it amended the Impact Aid statute, Congress

knew exactly how to incorporate student population into a

disparity calculation. Most prominently, in the very same

Act that added §7709(b)(2)(B)(i) to the Impact Aid pro

gram, Congress established the Education Finance Incen

tive Program, known as EFIG. See Improving America’s

Schools Act of 1994, 108 Stat. 3575. That statute allocates

grants to States based in part on an “equity factor” which

requires a disparity calculation similar to that in the

Impact Aid statute. See 20 U. S. C. §6337(b)(1)(A) (2000

ed., Supp. IV). In EFIG, however, Congress specifically

required the Secretary to take student population into

account: “[T]he Secretary shall weigh the variation be

tween per-pupil expenditures in each local educational

agency . . . according to the number of pupils served by the

local educational agency.” §6337(b)(3)(A)(ii)(II) (emphasis

added); see also Brief for Federal Respondent 28–29. And

there is more. In EFIG, Congress expressly provided that

a State would be accorded a favorable “equity factor”

rating if it was considered equalized under the Secretary’s

Impact Aid regulations. See §6337(b)(3)(B) (2000 ed.,

Supp. IV). Congress thus explicitly incorporated the

Impact Aid regulations into EFIG, but did no such thing

with respect to the Impact Aid statute itself. All this on

the very same day.

Nor do I see any significance in the fact that no legisla

tor in 1994 expressed the view that §7709(b)(2)(B)(i) was

designed to upend the Secretary’s equalization formula.

Ante, at 8 (majority opinion). It is quite plausible—indeed,

eminently plausible—that the Members of Congress took

the plain meaning of the language which the Secretary

himself had proposed to be what the Secretary himself had

previously been doing. It is bad enough for this Court to

consider legislative materials beyond the statutory text in

aid of resolving ambiguity, but it is truly unreasonable to

require such extratextual evidence as a precondition for

Cite as: 550 U. S. ____ (2007) 15

SCALIA, J., dissenting

enforcing an unambiguous congressional mandate. See

Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 73–

74 (2004) (SCALIA, J., dissenting). The Court points to the

fact that “no Member of Congress has ever criticized the

method the [Secretary’s] regulation[s] sets forth.” Ante, at

8. But can it really be that this case turns, in the Court’s

view, on whether a freshman Congressman from New

Mexico gave a floor speech that only late-night C–SPAN

junkies would witness? The only fair inference from Con

gress’s silence is that Congress had nothing further to say,

its statutory text doing all of the talking.

Finally, the Court expresses its belief that Congress

must have intended to adopt the Secretary’s pre-1994

disparity test because that test is the more reasonable one,

better able to account for States with small numbers of

large LEAs, or large numbers of small ones. See ante, at

8–11. This, to tell the truth, is the core of the opinion. As

I have suggested, it is no accident that the countertextual

legislative intent judges perceive invariably accords with

what judges think best. It seems to me, however, that this

Court is no more capable of saying with certainty what is

best in this area than it is of saying with certainty (apart

from the text) what Congress intended. There is good

reason to be concerned—in the implementation of a stat

ute that makes a limited exception for States that have “in

effect a program of State aid that equalizes expenditures

for free public education among local educational agen

cies,” 20 U. S. C. §7709(b)(1) (2000 ed., Supp. IV) (empha

sis added)—that the Secretary’s methodology eliminates

from the disparity calculation too many LEAs. In the

certification at issue in this very case, the Secretary ex

cluded 23 of New Mexico’s 89 LEAs, approximately 26%.

Is this Court such an expert in school finance that it can

affirm the desirability of excluding one in four of New

Mexico’s LEAs from consideration?

As for the Secretary’s concerns about the discrepancy

16 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

between large and small LEAs, does the Court have any

basis for its apparent confidence that other parts of the

Impact Aid statute do not adequately address the prob

lem? Immediately after setting forth the 95th and 5th

percentile cutoffs, §7709(b)(2)(B)(i), the statute instructs

the Secretary to “take into account the extent to which a

program of State aid reflects the additional cost of provid

ing free public education in particular types of local educa

tional agencies, such as those that are geographically

isolated, or to particular types of students, such as chil

dren with disabilities.” §7709(b)(2)(B)(ii). Respondents do

not explain why the Secretary could not use

§7709(b)(2)(B)(ii) to temper any unintended effects of

§7709(b)(2)(B)(i). Respondents further maintain that

States could take advantage of the statute’s plain meaning

by subdividing their LEAs. But again, the statute itself

contains a remedy. Under §7713(9)(B)(ii), “[t]he term

‘local educational agency’ does not include any agency or

school authority that the Secretary determines on a case-

by-case basis . . . is not constituted or reconstituted for

legitimate educational purposes.”

* * *

The only sure indication of what Congress intended is

what Congress enacted; and even if there is a difference

between the two, the rule of law demands that the latter

prevail. This case will live with Church of the Holy Trinity

as an exemplar of judicial disregard of crystal-clear text.

We must interpret the law as Congress has written it, not

as we would wish it to be. I would reverse the judgment of

the Court of Appeals.

Cite as: 550 U. S. ____ (2007) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1508

_________________

ZUNI PUBLIC SCHOOL DISTRICT NO. 89, ET AL.,

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE SOUTER, dissenting.

I agree with the Court that Congress probably intended,

or at least understood, that the Secretary would continue

to follow the methodology devised prior to passage of the

current statute in 1994, see ante, at 7–8. But for reasons

set out in JUSTICE SCALIA’s dissent, I find the statutory

language unambiguous and inapt to authorize that meth

odology, and I therefore join Part I of his dissenting opin

ion.