(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 adversely affected by a federal presence. The statute prohibits a State

from offsetting this federal aid by reducing state aid to a local district. To avoid unreasonably interfering with a state program that

seeks to equalize per-pupil expenditures, the statute contains an exception 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 expenditures 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 expenditures.” 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 expenditures 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 identify 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 contained (cumulatively) less than 5 percent of the student population

and an additional 6 districts at the bottom. The remaining 66 districts 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 review, petitioner school districts (Zuni) claimed that the calculations

were correct under the regulations, but that the regulations were inconsistent 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 district’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 carries 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 Education 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 reasonableness 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 expenditures. It does not tell the Secretary which of several possible methods the Department must use, nor rule out the Secretary’s present

formula, which distributes districts in accordance with per-pupil expenditures, while essentially weighting each district to reflect the 

number of pupils it contains. This interpretation is supported by dictionary 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 definitional 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 pupils), 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 concurring 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, Washington, 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 EDUCATION 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 statutory 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 responsible 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 offsetting 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 permits 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 expenditures 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 expenditures.” More specifically the statute provides that “a 

program of state aid” qualifies, i.e., it “equalizes expenditures” 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 perpupil 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 program reflects the special additional costs that some 

school districts must bear when they are] geographically 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 “equalizes 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 districts] identified in paragraph (ii) and dividing the difference 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 determined] 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 expenditure 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 application 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 expenditures. 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 opinion, 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 population; 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 program 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, however, 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 instructs the Secretary to disregard. The difference, as a 

result, between the highest and lowest per-pupil expenditures of the remaining districts (26.9 percent) would exceed 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 language 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 reasonable. 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 judgment). For purposes of exposition, we depart from a normal order of discussion, namely an order that first considers 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 question, 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 Congress often does not decide itself, but delegates to specialized 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 originally provided that the “ter[m] . . . ‘equaliz[ing] expenditures’ . . . 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 calculation, a system that the Department and school districts 

across the Nation had followed for nearly 20 years, without (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 noncharacteristic 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 another statutory provision that tells the Secretary to account 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 calculation 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 expenditures. In States with a small number of large districts, an exclusion based on percentage of school districts might exclude from the measure of disparity a

substantial percentage of the pupil population in

those States. Conversely, in States with large numbers of small districts, such an approach might exclude only an insignificant fraction of the pupil population 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 primarily rural areas and together account for 30 percent of the 
10 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF 

EDUCATION

Opinion of the Court

State’s students. If the State’s greatest funding disparities 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 disregard 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 noncharacteristic 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 expenditures, would avoid a calculation that would produce results 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 contains. 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” calculation upon a few particularly extreme noncharacteristic

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

Thus, the history and purpose of the disregard instruction 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 matter is important, for normally neither the legislative history nor the reasonableness of the Secretary’s method

would be determinative if the plain language of the statute 

unambiguously indicated that Congress sought to foreclose the Secretary’s interpretation. And Zuni argues that 

the Secretary’s formula could not possibly effectuate Congress’ 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 unambiguously 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 expenditures 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) ranking 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 present 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., “percentile”) and seeks a technical purpose (eliminating uncharacteristic, 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 “percentile” 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 distribution, 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 Economics 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 MerriamWebster’s Medical Desk Dictionary 612 (2002) describes 

percentile as “a value on a scale of one hundred that indicates the percent of a distribution that is equal to or below

it.” 

These definitions, mainstream and technical, all indicate that, in order to identify the relevant percentile cutoffs, 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 “percentile of such expenditures” makes clear that the relevant 

characteristic for ranking purposes is per-pupil expenditure 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, relevant 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] population” 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 population or how that population might be weighted for purposes 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 students as the relevant population for calculating the specified percentiles. Another Secretary might have distributed 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 compared 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 expenditure, 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 expenditure, 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, linguistically speaking, one may attribute the characteristic of

per-pupil expenditure to each member of any such population (though the values of that characteristic may be more

or less readily available depending on the chosen population, see 41 Fed. Reg. 26324). Hence, the statute’s literal 

language covers any or all of these methods. That language alone does not tell us (or the Secretary of Education), 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 pupils.” 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 language 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 remainder 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 comparable ambiguity. For example, in a different educationrelated 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 proficient 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 maximum 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 general 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,” “percentile,” “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 distributed, depending upon whether the context is one of providing additional counseling and support to students at lowperforming 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 instruction to identify school districts with “per-pupil expenditures” 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 understand (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 requires 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 accompanying 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 statute’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 section 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 receive 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 determines, and certifies under subsection (c)(3)(A)

of this section, that the State has in effect a program 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 local educational agencies if, in the second fiscal 

year preceding the fiscal year for which the

determination is made, the amount of perpupil expenditures made by, or per-pupil 

revenues available to, the local educational 

agency in the State with the highest such perpupil 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 revenues in the State; and 

“(ii) take into account the extent to which

a program of State aid reflects the additional cost of providing free public education in particular types of local educational 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 expenditures if the disparity in the amount of current expenditures 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 Secretary 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 Secretary will make separate disparity computations for 

different groups of LEAs in the State that have similar 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 percentage 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 pupils is determined in accordance with whatever standard measurement of pupil count is used in the 

State.” 

34 CFR pt. 222, subpt. K, App. (2006) (Methods of Calculations for Treatment of Impact Aid Payments Under State 

Equalization Programs): 

“The following paragraphs describe the methods for

making certain calculations in conjunction with determinations made under the regulations in this subpart. 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 compliance under § 222.162(b)(1). 

“(a) The determinations of disparity in current expenditures 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 number 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 EDUCATION 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. Oceanic Contractors, Inc., 458 U. S. 564, 571 (1982), thenJustice 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 statutory 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 rejected. 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 intention 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 provide better evidence of congressional intent with respect to 

the precise point at issue.

As the Court’s opinion demonstrates, this is a quintessential 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 sufficiently 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 

—————— 

1See, 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 because 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 judgment of the Court of Appeals even if I thought that petitioners’ 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 Congress’ intent. 

—————— 

2Contrary to JUSTICE SCALIA, I find it far more likely that the Congress that voted “without comment or clarification,” ante, at 8 (majority 

opinion), to adopt the 1994 statutory language relied on the endorsement 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 supposed 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. 3See 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 EDUCATION 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 statute.” Id., at 843. 

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

language of the statute is ambiguous. It is proper, therefore, 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 EDUCATION 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, because not within its spirit, nor within the intention of its

makers.” Id., at 459. That is a judge-empowering proposition 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 assertions 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 determining whether a State’s school-funding system is equalized. Her selection of that methodology is therefore entitled 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 statute, ante, at 11, but it first takes us instead on a roundabout 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 indication of a feeble case), are we informed how the statute’s

plain text does not unambiguously preclude the interpretation 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] straightforward 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 justified 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 Revenue Code, the Employee Retirement Income Security Act

of 1974, and the Clean Air Act, confronts technical language 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 considering 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 interpretation 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 concluding 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 program, 20 U. S. C. §7701 et seq. (2000 ed. and Supp. IV), 

States distributing state aid to local school districts (referred 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 equalization 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 revenues did not exceed the amount of such per-pupil ex-

—————— 

1The 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 revenues 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 concerns us here. 

The casual observer will notice that the Secretary’s

implementing regulations do not look much like the statute. 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 critically 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 statistics, 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.’” (quoting 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 percentile 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 expenditur[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 representing 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-forlitigation 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 relevant population for calculating the specified percentiles.” 

Ante, at 14. Under that interpretation, as the State manages 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’ expenditure or revenue amount”). The Court consequently

concludes that “linguistically speaking, one may attribute

the characteristic of per-pupil expenditure to each [student].” 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 revenue 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 revenue.” 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 

—————— 

2The 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 revenues] 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 agencies 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 expenditures 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 Secretary 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 total 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 applied 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 attributable to each student), but rather as I suggest (an average 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 expenditure 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 percentile of pupil “per-pupil expenditures or revenues,” that 

LEA would have to be excluded from the disparity analysis. The result would be a serious distortion of the disparity 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 Secretary’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 statute 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 ambiguous 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 glowingly 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 philosophy 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” lawgiving entity, which consists of both Houses of Congress 

—————— 

3Like 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 Congress 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 lacking that “intellectua[l] honest[y]” that JUSTICE STEVENS 

“presume[s]” all our judges possess, ante, at 2? Intellectual 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 because 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 convenient (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 opposite. 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 payment 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 required 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 ascribe to Griffin is in fact the one he advocated in dissent. 

“[T]his is one of the cases in which the exercise of judgment 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 (quoting 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 promulgated. 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 approach 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.” Chisom 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 measure 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 program, Congress established the Education Finance Incentive 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 between 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 legislator 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 Congress’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 statute 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 agencies,” 20 U. S. C. §7709(b)(1) (2000 ed., Supp. IV) (emphasis 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 excluded 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 problem? 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 providing free public education in particular types of local educational agencies, such as those that are geographically 

isolated, or to particular types of students, such as children 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 caseby-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 EDUCATION 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 methodology, and I therefore join Part I of his dissenting opinion.