1 (Slip Opini o n) OCTOBER T ERM , 20 06 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detro it Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s ZUNI PUBLIC SCHOOL DI STRI CT NO. 89 ET AL

. v . DEPARTM E NT OF E D UC ATION ET AL

. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 05–1 50 8. Ar g u ed Janu a r y10, 2007 —D ec ided April 17, 20 07 The Federa l Impa ctAid Progra m provides fina ncia la s sis t a nce t oloca l

school districts whose abilit y to fina nce p u blic school ed ucation is ad

versely affected by a federal prese nce. The statute prohibits a State from offsetting this federal aid by reducing state aid t oa local dis

t r ict

. To av oid unrea s onab l y int e rferin g wit has t a t eprogra m t h a t seeks to equ a l i ze per - pu pil ex pen d itu r e s, th e statu te c o n tain s anex cept ion permitt i ng a S t at e t o reduce it s ow n loca l funding on a ccount of th e feder al aid w h e r eth e Sec r e tar yof Edu c ationfin d s th at th e s t at e progra m “ e q u a l izes ex pendit ures ” among loca l s c hool dis t ricts

. 20 U. S. C. §7 709(b)(1). Th e Sec r e tar yis r e qu ir ed to u s e a for mu l a t h a tcompa r es t h e loca l s cho ol dis t rictwith t h e gr ea t e s tper-pupil ex

pen d itu r e s ina St ate to th e sc h o ol di s t rict wit ht h e s m a l les tper-pupil ex pen d itu r e s. If th e for mer does n o t ex c e ed th e l atter b ymor eth an 25 per c e n t , th e sta t e pr og r a m qu alif ies a s on e th at “equ alizes ex pen ditu r e s.” In makin gth is deter m in ation , th e Sec r e tar ymu st, inter alia, “ d is regard [s chool dist rict s ] wit hper-pupil expendit ures . . . ab o ve t h e 9 5 t h perce nt ile orb e low t h e 5 t hpercent ile of s uch e x pendi

tu r e s inth e State.” § 770 9(b )(2)(B)(i). Reg u lation s fir s t pr omu l g ate d 30 years ago provide that the Secretary will first create a lis t of s chool dis t rict s ra nked in o r der of pe r-pup il expendit ure ; t h eniden

tifyth e r e lev a n tper c e n t ile cu toff poin t onth at li st b a sedona spec ific (95thor5th) per c e n t ile of st ude nt populati on—essential l yidentifying th ose distr i c t s w h o se stu d ents ac c o u n tfor th e 5 per c e n t of th e State’s total stu d en t popu lationth a tlies a tbo thth e h i ghan d lowen ds of th e spen din gdistr ibu tion ; an d fi n a llyc o mpar e th e h i gh est s p en din gan d lowes ts p ending of t h e rem a ining s chool dis t rict s t os e e whet h ert h ey sati sfyth e sta t u t e’s r e qu ir emen t th a tth e dispar i t ybetw eenth em n o t2 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Sy llabu s exceed 25 percent.

Us ing t h is formula , Depa rt mentof Educa t i on officia l s ra nked New Mexico’s 8 9 lo ca l s chool dis t rict s in order of per-pupil s p ending fo r fisc al y e ar1 9 98, ex c l u d in g 17 sc h o ols at th e top bec a u s e th eyc o n t a i ned (cumula t ively) less tha n5 percentof t h e s t udentpopula tion an d anadditi on al 6 distr i c t s at th e botto m. Th e r e main in g66 dis

tr ic ts ac c o u n t ed forappr ox imately9 0 per c en t of th e St ate’s s t u d en t popu lation

. Bec a u s e th e dispar itybetw eenth e h i gh est an d low e st of th e r e main in gdistr i c t s w a s less th an25 p e r c e n t , th e State’s pr og r a m “equ alize[ d] ex pen d itu r e s,” an d th e State c o u l d offset feder a l impac t a i d b yreduci ng it s a i d t oindividua ldis t rict s . S e eking fu rt her re view, pet i t i oner s chooldis t rict s (Zuni) cla i med t h a tt h e ca lcula t i ons w e r ec o rr ec t un derth e r e gu lation s, bu t th at th e r e g u lati on s w e r ein

c o n s isten tw i t hth e au th orizin gstatu te bec a u s e th e D e par t men t mu st c a lc u l a t e th e 9 5th an d 5thper c e n t ile c u t offs ba sed s o lelyonth e numb e r of s chool dist rict s w i t h out cons idering t h e numb e r of pupils in t h os e dis t rict s . A Depa rtmentAdminist ra t ive La w Judge a n d t h e S e cret a r y b o t hrej e ct ed t h is c h a llenge, a n d t h e en b a nc Tent hCircuit u l tima telyaffi r m ed. Held: Th e stat u t e per m its th e Sec r e tar yto iden tifyth e s c h o ol distr i c t s

th at sh ou ld b e“disr e g a r d [ed]” bylookin gto th e numb er of t he d i s trict’s pupilsa s well a s t othe s i ze of t h e dis t rict ’s expendit ures per pu pil. Pp. 7–17.

(a) The “ d is rega rd” ins t ruct ion’s his t ory a n d purpos e in dica t et h a t th e Sec r e tar y ’ s c a lc u l at ionfor mu la is a r e ason ab le me t h od th at c a r r i es ou t Con g r e ss’ likelyin ten tinen ac tin gth e statu t o r ypr ov ision

. Foron e th i n g , th at meth od i s th e kin dof high lytech n i c a l, spec ialized in ter s titi al m a tterth at Con g r e ss does n o t dec i de itself, b u t deleg ate s to spec ial i zed ag en c i es to dec i de. Foran oth e r , th e stat u t e’s h i stor y s t rongly s u pport s t h e S e cret a r y. The p r es ents t at ut ory la ngua ge or igin ated in dr aft legi sl ati onsen tbyth e Sec r e tar yh i mself, w h i c h Con g r e ss ado p ted w i th ou t c o mmen torc l ar ific ation

. N oon e atth e time—no Member of Congress, no Department of Edu c ation official, no s chool districtor S t at e—expres s e d the view t h a t t h is s t at ut ory la ngua ge wa s int e nded t o req u ire, or did req u ire, t h e S e cret a r y t o cha nge t h e D e pa rt ment ’s sys t em of ca lc ula t i on, as y st em t h att h e Depa rt mentand s chool dis t rict s a cros s t h e Na t i on ha d followed for nea r ly 2 0 years . Fina lly, the purpos e of t h e dis r ega r d ins t ruct ion, whichis evidentin t h e la ngua ge of th e presen t sta t u t e, is to ex c l u d e sta t is tic a l ou tl ier s . View ed i nter m s of th i s pu r p ose, th e Sec r e tar y ’ s ca lcula t i on met h od is reas onab l e, while t h e rea s onab l en es s of Zuni’s proposed method is more d o ubtfulas the then Commissioner of Edu

c ationex plain e d w h e n h e c o n s ider ed th e mat t erin197 6. Pp. 7–11.

(b) The Secretary’s method falls within the scope of the statute’s3 Cite as: 55 0 U

. S. ____ (2007) Sy llabu s pla i n la ngua ge. Neit her t h e legis l a t ive his t ory nor t h erea s onab l e n e ss of th e Sec r etar y ’ s meth od w o u l d be det e r m in ativ eif t h e statu te’s pla i n la ngua ge una mb iguous ly indica t e d Congres s ’ int e ntt oforeclos e th e Sec r e tar y ’ s in ter p r e ta tio n . See Chevron, supra, at 84 2–8 43. Th at is n o t th e c a se h e r e . Sec t ion 7709(b)(2)(B)( i)’s ph r a se “ above th e 9 5t h percentile . . . of .

. . [per-pup il] expenditures ” (emphasis added) limi t s th e Sec r e tar y to c a lc u l atio nmeth ods in v o lv in gper - pu pil ex pen d i

tu r e s. It does n o t tell th e S e c r e tar ywh ichof sev e r a l possi ble me th

ods t h e Depa rt mentmus tu s e, nor r u le o u tt h e S e cret a r y’s pres ent formula , whic hdis t rib u t e s dis t rict s in a c corda nce wit hper-pupil ex

pendit ures , while es s e ntia lly weight ing e a ch dis t rict to reflectt h e n u m berof pu pils it c o n tain s . Th is in ter p r e tationis su ppor t ed bydic

tion ar ydefin i tion s of “per c e n t ile,” an d byth e fac tth at Con g r e ss, in oth e rsta t u t es , h a s c l ar ified th e ma ttera t issu e to av oidc o mpar ab l e ambig u ity

. M o r e ov er, “[a]mbig u i tyis a c r e atu r en o t [ju s t] of defin i

tion al pos s ib ili ties bu t [a lso] of statu tor yc o n t ex t.” Brownv. Gard ner , 513 U. S. 11 5, 118. Con t ex t h e r ein dic ates th at bo thstu d en ts an d s chool dis t ricts a r e of concer nt ot h e s t at ute, a n d, t hus , t h e dis r ega r d ins t ruct ion ca n include wit h in it s s c ope the dis t rib u tion of ara nked popula t i on cons is t i ng of pupils (or of s c h o ol dis t rict s w e ight ed b ypu pils ), notj u s tara nked dis t rib u t i on of u nweight ed s c hool dis t rict s a l one. Fina lly, t h is Courtis rea s s ured by t h e fa ctt h a tno group o f s t at ist i cia n s , nor a n y individua ls t a t is ticia n , ha s s a id direct ly in br iefs, orin dir e c t lyth r o ugh c i tation , th atth e lan g u a g einqu estion c a n n o t be r e ad th e w a yit is in ter p r e ted h e re. Pp. 11–17. 437 F. 3d 12 89 , affir m ed.

B REYER , J., delivered the opinion of the Court, in which S TEVENS , K ENNEDY , G IN SB U R G , and ALITO , JJ., join ed. S TEVENS , J ., filed aconcur ring opinion. K ENNEDY , J ., filed aconcurri ng opinion, inwhich ALI TO , J., joined. S CALIA , J., filed a dissent ing opinion, i n which R OBERTS , C. J., and T HOMAS , J ., j o ined, a n d in which S OUTER , J., join ed as to P a r t I. S OUTER , J., filed a dis s enti ng opinion._________________

_________________ Cite as: 55 0 U

. S. ____ (2007) 1 Opinion of t h eCourt
NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 50 8 ZUNI PUBLIC SCHOOL DI STRI CT NO. 89, ET AL ., PETITION ERS v. DE PARTM E N TOF E D U CATION ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Apr il 17, 20 0 7 ] J USTICE B RE YE Rdelivered the opinion of the C o urt. A federal statute sets forth a method that the Secretar y of Education is to use when determining whether a State’s public school funding program “equalizes expenditures ” throughout the State. The statute instructs t h e Secretar y to calculate the dispari t y in per-pu pil expenditures among local school districts in the St ate. But, when doing so, the Secretar yis to “disrega rd” school districts “ with per-pu pi l expenditu re s . . . above the 95th pe rcen tile or b e low th e 5th perc entil e of such ex penditu res . . . in theSta t e .” 20 U. S. C. §7709(b)(2)(B)(i) (emphasi s added). The question before us is whether the emphasi z ed statu

tory langua ge permits the Secre tary to identify the school districts th at should be “disregar d [ed]” by looking to th e number of the distr i ct’s pupils as well as to t h e 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 a ssistance to2 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt local schooldistricts whose ab ility to finance public school education is adversely affected b ya federa l presence. Federal aidis availabl e to di stricts, for example, where a significant amount of federal land is exempt from loca l property taxes, or whe r e the federal presence is responsi

ble for an i n crease in school-age children (say, of armed forces personnel) whom local schools must educate. See §7701. The statute typically pr ohibits a Sta t e from offset

ting this federal aid by reducing its own state aid to the local district. If applied with out e x ceptions, however, this prohibitionmight unreasonably interfere with a state program that seeks to equalize per-pupil expenditures throughout the State, for inst ance, by preventing the state program from taking account of a significant source of federal funding that some loca l school districts receive. The statute consequen t ly cont ains an exception that per

mits a Sta t e to compensate for federal impact aid wher e “the Secret a ry [of Edu c ation] de termine[s] and certifies .

. . that the State has in effect a program of State aid tha t equalizes expenditures for free public education among local [school districts] in the State.” §7709(b)(1) (2000 ed. , Supp. IV) (e mphasis added). The statut e sets out a formula that the S e cretary o f Education must use to determine whether a state aid program sa tisfies the federal “e qu aliz[ation]” requiremen t

. The formula instructs the Secreta ry to comp are the loc a l school distri ct with the greatest per-pupil expenditures to the school district wit hthe smallest per-pupil expendi

tures to see whether th e former ex ceeds the latter by mor e than 25 percent. So long as it does not, t h e state ai d program qualifies as aprogram that “equalizes expendi

tures.” More specifically th e statute provides that “a program of state aid” qualifies, i.e. , it “equaliz es expendi

tures” among local school districts if, “in the second fiscal year preceding the fiscal year for3 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 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 sc hool distric t] with the lowest such expenditures .

. . by more than 25 percent.” §7709(b)(2)(A) (2000 ed.). The statutory provision goes onto set forth what we shall call the “disregar d” instruc t i o n. It states that, whe n “making” t h is “determination,” the “ Secretary shall .

. . disre gard [s chool distri cts] wi th p e r-pupil expe nditure s . . . above the 9 5th per cen ti le or below the 5th pe rce ntile of suc h expenditu re s. ” §7709(b )(2)(B)(i) (e mphasis added). It a d ds that the Secretary shall further: “take into account the extent to w h ich [the state pro

gram reflec ts the spec ial additional costs th at some school districts must bear when they are] ge ographi

cally isolat ed [or when they provide education for] particular types of st udents, suc has childr e n with disabilities. ” §7709(b)(2)(B)(ii). B This case requires us to de cide w h ether the Secretar y ’s present calculation method is consistent wit hthe federal statute’s “d isregard” instruction. The method at issue is contained in a set of r e gulations that the Se cretar yfirs t promulgated 30 years ago. Those regulations essentiall y state the fol l owing: When deter m ining whether a state aid program “equal

izes expenditures” (the reby permit ting the St ate to reduc e its own local funding on account o f federal impact aid), the Secretary will first create a list of school districts ranked in order of per-pupil expenditure. The Secretary will th en identify the relevant p e rcentile cutoff point on that list o n the basis of a specific (95th or 5th) percentile of student4 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt population—essentially identifying those districts whos e students account for the 5 perc ent of the State’s tot a l student population that lies atboth the high and low ends of the spending distri bution. Finally the Secretary will compare the highest s p ending and lowest sp ending school districts of those that remain to see whether they satisf y the statute’s requirement thatthe disparity between them not exceed 25 percent. The regulations set forth this calculation method as follows: “[D]eterminations of di sparity in current expe nditures . . . per-pupil are made by— “(i) Rankin g all [of the State’s s c h ool districts] on the basis of cu rrent expenditures .

. . per pupil [in the relevant statutorily determined year]; “(ii) Identifying those [ s chool districts] thatfa ll at the 95th and 5th percentiles of the tot a l number of pupils in attendance [at all th e State’s sc hool districts taken together]; and “(iii) Subtracting the lower current expenditure

. . . per pupil figure from the higher for those [school dis

tricts] identified in par a graph (ii) and dividin gthe dif

ference by the lower fi gure.” 34 CFR pt. 22 2, subpt. K, App., ¶1 (2006) (emphasis deleted). The regulations also provide an illustration of how to perform the calculation: “In State X, after ran k i n g all [school districts] in order of the expenditures per pupil for the [statuto rily de

termined] fiscal year i nquestion, it is ascertained by counting th e number of pupils in attendance in those [school districts] in as cending or der of exp e nditure that the 5th percen t ile of student population is reached at [ s chool district A] with a per pupil expendi

ture of $820, and that the 95th percentile of student population is reached at [school d i strict B] w i th a per5 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt pupil expenditure of $1 ,000. The percentage disparity between the 95th per c entile andthe 5th p e rcentile [school dis tricts] is 22 percent ($1000

− $820 = $180/$820).” Ibid. Because 22 percent is less than the statutory “25 percent” requiremen t , the state program in the example qualifie s as a progra m that “equa lizes expe nditures.” C This case concerns the Departmen t of Educati o n’s appli

cation of the Secretar y ’s regu lations to New Mexico’s local district aid program in respect to fi scal year 2 000. As th e regulations require, Departmen t officials l i sted each of New Mexic o ’s 89 local school districts in order of per-pup il spending for fiscal year 1998. (The calculation in New Mexico’s case was performed, as the statute allows, on t h e basis of per

- pupil reven ues , rather than per-pu pil expendi

ture s . See 20 U. S. C. §7709(b)(2)(A). See also Appendix B, infra. F o r ease of reference we nevertheless refer, in respect to New Mexic o ’s figu res and throughout the op in

ion, only to “per-pupil expend itures.”) After ranking th e districts, D e partment officials exc l uded 17 school districts at the top of the list because those districts contain e d (cumulatively) less than 5 percent of the stu d ent popula

tion; for the same reason, they excluded anadditional 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 distri ct spent $3,259 per student; the lowest ranked district spent $2,848 per student. The difference, $411, was l e ss than 25 percent o f the lowest per-pupil figure, namely $2,848. Hence, the officials fou n d that New Mexico’s local aid program qualifies as a pro

gram that “equalizes expenditures.” New Mexico was therefore free to offsetfederal impact aid to individual districts by reducing st ate aid to those districts.6 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt Two of NewMexico’s p ublic school districts, Z u ni Publi c School District and Gal l up-McKinley County Public Scho ol District (whom we shall colle ct ively call Zuni), sought further age n cy review of these fi ndings. Zuni conceded that the Department’s calculat ions were correct in terms of the Department’s own regulations. Zuni argued, how

ever, that the regulations thems e lves are inconsistent with the authorizing statute. That statu t e, in its vie w , requires the Departm ent to calc ulate the 95th and 5t h percentile cutoffs solely on the basis of the number of school distr i cts (ranke dby their per-pupil expenditures ), without any consideration of the number of pupils in those districts. If calculated as Zuniu r ges, only 10 districts (accounting for less than 2 perce nt of all students) wo uld have been identified a s the ou tliers that the statute in

structs the Secretar y to disregar d. The difference, as a result, between the highest and lowest per-p u pil expendi

tures of the remaining distri cts (26.9 percent) would ex

ceed 25 percent. Consequently, the statute would forbid New Mexic o to take account of f e deral impact aid as it decides how to equalize school f unding across the State. See N. M. Stat. Ann. §22–8–1 et seq . (2006). A Departm e nt of Educatio n Administrative Law Jud ge rejected Zuni’s challen g e to the regulations. The Secretary of Educatio n did the same. Zuni sought review of th e Secretar y ’s decision in the Courtof Appeals f o r the Tent h Circuit. 393 F. 3d 115 8 (2004). Initially, a Tenth Circuit panel affirmed the Secretary ’s determination by a split vote (2 to 1). Subsequently, th e full Court of Appeal s vacated the panel’s decision and heard the m a tter en ba nc. The 12-member en banc court affirmed the Secretary b u t by an evenl ydivided court (6 to 6). 437F. 3d 1289 (2006)

. Zuni sought certiorari. We agreed to decide the matter.7 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt II A Zuni’s strongest argu ment rests upon the literal lan

guage of th e statute. Zuni conc edes, as it must, that if the language of the statute is open or ambiguous—that is, if Congress left a “gap” for the agen cy to fill—then we mu st uphold the Secretar y ’s interpreta ti on as long as it is rea

sonable. S ee Chevron U. S. A. Inc. v. Nat u ral Re s o ur ces Defen se Council, Inc. , 467 U. S. 8 37, 842–843 (1984). See also Christensenv. H a rris County , 529 U. S. 576, 589, n. (S CALI A , J., concurring in part and concurri ng in judg

ment). For purposes o f expo sition, we depart from a nor

mal order o f discussion, namely anorder that first consid

ers Zuni’s s t atutory la nguage argument. See Barnhartv. Sigmon Co al 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 backg round and basic purposes. That discussion will ill uminate ou r subsequent analysis in Part II–B, inf ra . I tw i l la l s o r e v e a l why Zuni co ncentrates its argumen tupon language alone. Considerations other than language provide us with unusually strong indi cations that Congress intended to leave the Secretar yf r ee to use the calculation method before us and that t h e Secretary’s chosen method is a reasonable one. For one thing, the matter at issue— i.e. , the calculation method for deter m ining wh ether a sta t e aid program “equaliz es expendi t ures”—is the k i nd of highly tech nical, specialized interstitial matter that Con

gress often does not de cide it self, but delegates to sp ecial

ized agencies to decide

. See United Sta t esv. Mead Corp. , 533 U. S. 218, 234 (2001); cf. MCI Tele communicatio n s Corp. v. A m ericanTe lephone & Tele gra p h Co. , 512 U. S. 218, 231, (1 994); Christensen , sup r a , at 589, n. (opinion of S CALI A , J.). For another thing, th e history o f the sta t u t e strongl y supports th e Secretar y . Cong ress first enact e d an impa ct8 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt aid “equaliz ation” exception in 19 74. The exception origi

nally provided that the “ter[m] .

. . ‘equaliz[i ng] expendi

tures’ .

. . shall be defined by the [Secretar y]. ” 20 U. S. C. §240(d)(2)(B) (1970 ed., Supp. I V). Soon thereafter, in 1976, the Secretary promulgated the regula tion here a t issue defini ng the term “equalizing expendi t ures” 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 Secretar y himself s e nt to Congress i n 1994. With one minor change (i rrelevant to the present calculation controversy), Congress adopted that language without comment or clarification. No one at the time—no Member of Congress, no Depa rtment of Educa t ion official, no school district or State—expre ssed the view that this statutory la nguage (wh i ch, after all, was supplied by the Secretar y) was intended to require, or did require, the Secretary to change the Department’s system of calcula

tion, a syst em that th e Departm ent and sc hool districts across the Nation had foll owed for nearly 20 years, with

out (as far as we are told) any adve rse effect. Finally, vie w ed in terms of the p u rpose of t h e statute’s disregard i n struction, the Secre ta ry’s calculation method is reasonab le, while th e reasonabl eness of a method based upon the number of districts alone (Zun i’ s propose d method) is more doubtful. When the Secretary ( t hen Commissio n er) of Education considered the matter in 1976, he ex plained why that is so. Initially the Secretarypointe d ou t that the “exclusion of the upper a n d bottom 5 percentile school districts is based upon the accepted principle of statistical evaluation that such percen t iles usually rep r esent uniqueor nonc hara ct er isticsitua t ions.” 41 Fed. Reg. 26320 (1976) (emphasis added). That purpose, a purpose to exclu d e statistical9 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt outliers, i s evident in t h e language of thepre s ent statute. The provision uses the technical term “p ercentile”; it refers to cu t o ff numbers (“95th” and“5th”) oftenassociated with scientific calculations; and i tdirectly precedes an

other statu t ory provision thattells the Secr etary to ac

count for t h ose districts, from a m ong the middle 5th to 95th perce ntile districts, that re main “noncharacteristi c ” in respect t o geograph y or the presence of special students (such as disabled students ). See 20 U. S. C. §§7709(b)(2 )(B)(i)–(ii). The Secreta ry added th at under th e regulation’s calcula

tion system the “perce ntiles” would be “deter mined on the basis of nu mbers of pupils and noton the basi s of number s of districts.” 41 Fed. Reg. 26324. He said tha tto base “a n exclusion on numbers of districts” alone “w ould act to apply the disparity sta n dard in an unfair and inconsisten t manner among States.” Ibid

. He then elab orated upon his concerns: “The purpo s e of the exclusion is to elimina t e those anomalous characteristics of a distribution of expendi

tures. In States witha small number of large dis

tricts, an exclusion based on percentage of school dis

tricts mi gh t exclude f r om 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 insignifi c ant fraction of the pupil popu

lation an d would not exclude anomalous characterist ics.” Ibid

. To understand the Secretary’s first problem, consider an exaggerate d example, say a State with 80 school distric t s of unequal size. Suppose 8 of the districts include urban areas and together account for 7 0 percent of the State’s students, w h ile the remaining 72 districts include primar

ily rural ar eas and together account for 30 p e rcent of th e10 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt State’ s students. If the Stat e’s greatest fu nding dispa r i

ties are among the 8 urban districts, Zun i ’s calculation method (which looks only at the number of districts and ignores their size) would require the Sec r et ary to disr e gard the system’s 8 lar g est district s ( i.e. , 10 p e rcent of th e number 80) even thou gh those 8districts (because th ey together co ntain 70 percent of the State’s pupils) are typical of, indeed characterize, the State’ s public school system. It would require the Secre tary instea d to measure the system’s expenditure equa lity by looking only to noncharacterist ic districts that are not representative of the system as a whole, indeed district s accounting for only 30 percent of the State’s pupils. Thus, according to Zuni’s method, the Secretarywould have to certify a state aid program as one that “e qualizes expenditures” even if the r e were gross disparities in per-pu pil expenditures among urban districts accoun ting for 70 percent of the State’s students. By wa y of contrast , the Secretary ’s method, by taking into account a d i strict’s size as well as its expendi

tures, would avoid a calculation that would produce re

sults so contrar yto the statute’s objective. To underst and the Se cretar y ’s se cond problem consider this very case. New Mexico ’s 89 school districts va r y significantly in respect to th e nu mber of pu pils each co n tains. Zuni’s calculation system nonetheles s forbids the Secretary to discount more than 10 districts —10 percent of the total number of districts ( r ounded up). But these districts ta ken together accountfor only 1.8 percent of the State’ s pupils. To elimi nate only those districts, instead of eliminatingdistricts t hat to gether account f o r 10 percent of the State ’ s pupils, risks resting the “disreg a rd” calcula

tion upon a few particularly extreme nonc haracteristi c districts, ye t again cont rary to the statute’s int e nt. Thus, the h i story and purpose of the disregard instruc

tion indicate that the Secreta ry’s calculation formula is a reasonable method that carries out Congress’ likely inten tCite as: 55 0 U

. S. ____ (2007) 11 Opinion of t h eCourt in enacting the statutory provision before us. B But what of the provision’ s literallanguage? The mat

ter is important, for n o rmallynei t her the legislative hi s tory nor t h e reasonableness of the Secret a ry’s meth od would be determinative if the plainlanguage of the statute unambiguously indicated that Congress sought to fore

close the Secretar y ’s interpreta tio n . And Zun i argues that the Secretary’s formula coul d notpossibly ef fectuate Con

gress’ inten tsince the statut e’s la nguage 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, th a t would be th e end of our analysis. See Chevro n , 467 U. S., at 842–843. A custom s statute that imposes a tariff o n “clothing” does not i m pose a tariff on automobiles, no matter howstrong the policy arguments for treating the two kinds of goods alike. But we disagre e with Zun i’s conclusion, for we believe that the Secretar y ’s method falls within the scope of the statute’s pl ain language. That langu a ge says th at, when th e Secretar ycompares (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-pu p il-expenditure district , “the Secret a ry shall .

. . disregard” local school distric t s “with per-p u pil 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 “su c h” refers to “ p er-pupil expenditures ” (or more precisely to “per-pupil e x penditures ” in the tes tyear s p ecified by the statute). The questionthen is whether the phrase “ abov e the 95th p ercen tile .

. . of .

. . [per pupil] expenditures ” permits the Secretary t o calculate percentiles by (1) rank

ing local districts, (2) noting the student population of each distric t , and (3) d e termining the cutoff p o int on the12 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt basis of di stricts containing 95 percent (or 5 percent) of the State’s students. Our answe r is that this phrase, taken wit habsolute literalness, limits the Secreta ryto calcula t ion methods that involve “per-pupil expenditur es.” But it does not tell the Secreta ry which of several dif f erent possible methods the Depart ment must use. Nor does it rule out the pre

sent formula, which distribut es districts i naccordan ce with per-pupil expen d itures, while essentia lly weighting each distric tto reflect t h e number of pupils it contains. Because th e statute u s es technical language (e.g. , “per

centile”) and seeks a technical purpose (eliminating un

characterist ic, or outlier, district s), we hav e examined dictionary d e finitions of the te rm “p ercentile.” See 41 Fed. Reg. 26320 (Congress intended measurements based upon an “accepte dprinciple of statis tic a l evaluation” (emphasis added)). Those definitions make clear that “percentile” refers to a division of a distribu tion of somepopulation into 100 pa rts. Thus, Webster’s Third New International Dictionary 1675 (1961) (Webster’s Third) defines “percen

tile” as “the value of th e statistical variable th at mar k s th e boundary between any two co nsecutive intervals in a distribution of 100 intervals each containing one percen t of the total population.” A standard economics dictionary gives a similar definition for “perce ntiles”: “The values separating hundredthparts 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 largerincomes.” J. Blac k, A Di ctionar y of E c o nomics 348–349 (2d ed. 2002). A dictionary of mathematics states: “The n -t h percentile is the value x n/100such that nper cent of the population is less than or equal to x n/100 .” It adds that “[ t] he terms can be modified , though not always very satisfact o rily, to be13 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt applicable to a discrete random variable or to a large sample ranked in ascending order.” C. Clapham & J. Nicholson, The Concise Oxford Di ctionary of Mathematics 378–379 (3 d ed. 2005) (emphasis deleted). T h e American Heritage Science Dictionary 468 (2005) explains that a percentile is “[a]ny of the 100 equal parts i n to 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 Dictiona r y 612 (2002) describes percentile as “a value o na scale of one hundred that indi

cates the percent of a distribution that is equal to or below it.” These defi nitions, ma instream and technical, all indi

cate that, i norder to i d enti fy the relevant percentile cut

offs, the Secretar ymust constru ct a distributi o n of values

. That distri bution willconsist of a “popula t ion” ranked according to a characteristic. That characteristic takes on a “value” fo r each mem b er of the r e levant population. The statute’s instruction to identify the 95th and 5th “percen

tile of such expenditures” makes clear that the relevant chara c teris t icfor ranki n g purposes is per-pu pil expendi

ture duringa particular year. But the statute does not specify pre c isely what populationis to be “ d istributed” ( i.e. , ranke daccordingto the population’s corresponding values for the relevant character i stic). Nor does it set forth va rious details as to how pre c isely the distribution is to be constructed (as long as it is r anked acco rding to th e specified characteristic ). But wh y is Congress’ silence in respect to these matters significant? Are there several differen t popu lations, rele

vant here, that one might rank according to “per-pupil expenditures” (and thereby determine insev e ral different ways acut o ff point such that“ n percent of [ t hat] popul a tion” falls, say below the percentile cutoff)? We are not experts in statistics, bu t a statistic i an is not needed to see what the dictionary does not sa y. No dictionary definition14 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt we have found sugges t s that the r e is any singlelogica l, mathematical, or stat istical linkbetween, on the on e hand, the characterizi ng data (us e d for ranki n g purposes) and, on the other hand, the nature of the relevant popula

tion or how that pop u lation migh t be weighted for pur

poses of det e rmining a percentile cutoff. Here, the Secretar yhas distributed districts, ranked them accor d ing to per

- pupil expenditure, bu t compared only those that account for 90 pe rcent of the State’ s pupils. Thus, the Secretary has used—as his predecessors had done for a quarter cen t ury before him—the State’s stu

dents as th e relevant population for calculating the speci

fied percentiles. Anot her Se creta ry might h a ve distrib

uted districts, rank ed 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 Secreta ry long ago identified, see 41 Fed. Reg. 26324; supra, at 4–5). A thir d Secre tarymight ha v e distributed districts, ra nked them by per-pupi l expenditure, but com

pared only those that account for 90 percent of total pupil expenditures in the State. A fourth Secretary might have distributeddistricts, r anked the m by per-p u pil expendi

ture, but calculated the 95th an d 5th percentile cutof f

s using the per-pupil expenditures of all the individual schools in the State. See 41 Fed. Reg. 26324 (considering this system of calculation). A fift h Secretarymight have distributeddistricts, r anked the m by per-p u pil expendi

ture, but a ccounted inhis disparity calculation for the sometimes significant differences in per-pupil spending at different grade levels. S ee 34 CFR §222.162(b)(1) (2006) (authorizing such a s y stem); id., pt. 222, subpt. K, App. See also Appendix B, inf ra . Each of these methods amounts to a different way o f determining which dis tricts fall between the 5th and 95 t h “percentile of per-pupil expenditures.” For purposes of that calculation, they each adop t different populations—15 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt students, districts, scho ols, and gra d e levels. Yet, linguis

tically speaking, one may attrib u te the characteristic of per-pupil expenditure to each member of any such popula

tion (though the values of that ch aracteristic may be mor e or less read ily availabl e dependin g on the chosen popul a tion, see 41 Fed. Reg. 26324). Hence, the statute’s literal language covers any or all of th ese method s. That lan

guage alone does not tell us (or the Secreta ry of Educ a tion), however, which method to use. J USTICE S CALIA’s clai m that this interpretat i on “defies any sembla nce of nor m al Englis h” depends upon its own definition of the wo rd “per.” Tha twor d , ac c o rding to t h e dissent, “connotes . . . a single average figure assigned to a unit the composite me mbers of which are in dividual pu

pils.” Post , at 6 (dissenting opinion) (emphasis omitted). In fact, the word “per” simply means “[f]or each” or “for every.” Bl ack’s Law Dictionary 1171 (8th e d . 1999); see Webster’s Third 1674. Thus, noth ing in the English lan

guage forbids the Secr etary fr om considering expenditures for eachindividual pupil in a district when instructed t o lookat a di strict’ s “per-pupil expenditures.” The remain

der of the dissent’s argument, co lorful language to th e side, rests upon a rea d ing of the statutory l anguage th at ignores its basic purpose and history. We find additional evi d ence for our understanding of the language in the fact th at Congress, in other s t atutes, has clarified th e matter he re at issue thereby avo i ding comp a rable ambi guity. For example, in a different educationrelated statute, Congress refers to “the school at the 20t h percentile in the State, basedon enrollmen t , among al l schools ranked by the perc entage of students at the p rofi

cient l e vel .” 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 forthe service (weightedby the frequency of the16 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Opinion of t h eCourt servi ce)performed by nonparticipating physi c ians in the locality during the [pri or] 12-month period.” 42 U. S. C. §1395u(j)(1)(C)(v) (200 0 ed.) (emphasis added). In these statutes Co ngress indicated with greater spe c ificity howa percentile should be determined by statin g precisely n o t only whichdata valu es are of interest, but also (in the first) the p o pulation that is to be distributedand (in th e second) the weighting s needed t o make the calculation meaningful and to avoi d counterproductive results. Inth e statute at i ssue here, however, Congress used more gen

eral langua ge (drafted by the Secretary himself), whi c h leaves the Secretar y with the a u thority to resolve such subsidiary matters at t h e administ rative level. We als o fin dsupport for our view of the language in the more general circumst ance that statutory “[a]mbiguity is a creature not [just] of definitional possibiliti e s but [also] of statutory context.” Brow nv. Gardner , 513 U. S. 115, 1 18 (1994). See also FDAv. Brown & Williamson Tobacco Corp. , 529 U. S. 120, 132–133 (2000) (“[ m ]eaning—or ambiguity—of certainwords or p h rases mayonly become evident when placed i ncontext” (emphasis a dded)). That may be so even if stat utory langu a ge is high ly technical. After all, the scope of what seems a precise technical chess instruction, such as “yo umust plac e the queen next to the king,” varie s with context, depending, for example, upon whether th e instructor is tellin g a beginner how to set up the board or telling anadvanced player how to checkma t e an opponent. The dictionary acknowledge s that, wh en interpreting technical statistical language, th e purpose of the exercis e matters, for it says that “quan tile,” “perce n tile,” “quartile,” and “ d ecile” are “terms [that] can be modified, t h ough not always v e ry satisfactorily, to be applicable to .

. . a l a rge sample ranked in ascending order.” Oxford Diction ary of Math ematics, at 379. Thus, an instruction to “identify schools with avera g e scholastic aptitude testscores below the 5th percentile of17 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt such scores” may va ryas to the population to be distrib

uted, depending upon whether the context is one of provid

ing additional counsel ing and support to students at l o wperforming schools (in which case the relevant population would lik ely consist o f students), or one of identifying unsuccessful learning protocol s at low-performing schools (in which case the appropriate population may well be t h e schools the m selves). Context here tells us that the in

struction to identify sc hool districts with “per- p upil expen

ditures” above the 95th percentile “of such expenditures” is similarly ambiguous, because both students and school districts ar e of concer n to the statute. Acc o rdingly, t h e disregard i n struction can include within its scope the distribution of a ran k e dpopulation that consists of pupils (or of school districts weight ed by pupils) and not just a ranked distribution of unweighted school districts alone. Finally, we draw reas surance from the fact that no group of statisticians, nor any individual statistician, has told us dir e ctly in bri e fs, orindirectly thro ugh citatio n , that the language before us cannot be read as we have read it. Th is 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) wha t Congress had in mind. The upshot is that the language of the statute is broad enough to permit the Secretar y ’s reading. That fact re

quires us to look beyond the language to determine whether th e Secretary’s interp retation is a reasonable, hence permissible , implementation of the statute. See Chevron , 4 67 U. S., at 842–843. For the reasons set for t h in Part II –A, sup ra , we conclu de that th e Secretar y ’s reading is a reasonable reading. We consequ e ntly find the Secretar y ’s method of calculation lawful. The judgment of the Tenth Circuit is affirmed. It is so orde red.18 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Appendix A t oopinion of t h eCourt AP P E N D IXE S TO O P IN IO N O FTH E CO UR T
A We set out the relevant statu t ory provisions and accom

panying re gulations i nfull. The reader will note that i n the text of our opinion , for purposes of exposi tion, we us e the term “lo c al school districts” wh ere the stat ute refers t o “local educational agencies.” We also disreg ard the stat

ute’s frequent references to local“revenues” because thos e references do not raise any additional considerations germane to this case. Impact Aid Program, 20 U. S. C. §7709 (2 0 00 ed. and Supp. IV) (State consideration of payments in providing state aid): “(a) Genera l prohibition “Except as provided in subsection (b ) of this se ction, 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 am ount of such aid; or “(2) make s u ch aid ava ilable to l o cal educational agencies in a manner that results in less State aid to any l o cal educational agency that is eligib le for such pa yment thansuch agenc ywould rec e ive if such agency were not so eligible. “(b) State e qualization plans “(1) In general “A State m a y reduce State aid to a local educa

-19 Cite as: 55 0 U

. S. ____ (2007) Appendix A t oopinion of t h eCourt tional agency tha trece ives a pay m ent 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 t i tle and, wi th respect to a local educational agenc ythat recei v es a payment under secti on 7703(b)(2) of this ti tle, the am ount in excess of the amount that the agency would re

ceive if the agency we re deemed to be an ag ency eligible to receive a payment under section 7703(b)(1) of this title and not section 7703(b )(2) of this title) for any fisc al year if th e Secretary de

termines, and certifies under subsection (c)(3)(A) of this section, that the State has in effect a pro

gram of Sta t e aid that equalizes expenditures for free publiceducationamong l o cal educational agencies in the State. “(2) Compu t ation “(A) In general “For purposes of pa ragraph (1), a program of State aid equalizes expenditures among lo

cal educational agencies if, in the s e cond fiscal year preceding the fiscal year for which the determination is mad e , the amount of perpupil expenditures made by, or per-pup il revenues av ailable to, the l o cal educationalagency 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-pupilrevenues available to, the local ed ucational agency in the State with the lowest such expenditures or revenues b y more than 25 percent. “(B) O t her factors In making a determination under this subsec-20 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Appendix B t oopinion of t h eCourt tion, the Secretar yshall— “(i) disregard local educational agencies with per-p u pil expenditures or revenues above the 95th percent ile or belowthe 5th percentile of such expenditures or reve

nues in the State; and “(ii) take in to accountt h e extent t o which a program of State aid reflects the ad

ditional cos tof providing free public edu

cation in particular ty pes of local educa

tional agen cies, such as those t hat are geographically isolated , or to particular types of students, such as children with disabilities. ” B 34 CFR §22 2 .162 (2006) (What disparity stan dard must a State meet in order to be certified and how a r e disparities in current expenditures or revenues per pupil measured?): “(a) Percen tage dispari t y limita t ion. The Secretar y considers that a State aid progra m equalizes expendi

tures if the disparity i nthe amount of curre nt 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 per c entage, th e Secre

tary disreg ards LEAs with per p u pil expenditures or revenues ab ove the 95t h or below the 5th percentile of those expe nditures 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) W e i

ghtedav er agedisp ar ity for differen t grade l e vel groups. If a State requests it, the Secre

tary will make separate di sparity computations for different groups of LEAs in the State that have simi

lar grade levels of instruction.21 Cite as: 55 0 U

. S. ____ (2007) Appendix B t oopinion of t h eCourt “(2) In those cases, the weighted average disparity for all groups, based o nthe proportionate number of pupils in each g r oup, may not be more thanthe per

centage provided in paragraph (a) of this secti on. The method for calculating the weighted aver age disparity percentage is set out in the appendix to this subpart. “(c) Per pu pil figure computation s . In calcu l ating the current expenditures or revenue disparities under this section, computations of per pupil figures are made on on e of the fol l o wing bases: “(1) The per pupil amount of current expenditures or revenue for an LEA is computed on the basi s of the total number of pupils receiving free public education in the schools of the a g ency. The total number of pu

pils is determined in accordance with whate v er stan

dard meas urement of pupil cou n t is used in the State.” 34 CFR pt. 222, subpt. K, App. (20 06) (Methods of Calcula

tions for Treatment of Impact AidPayments Under Sta t e Equalization Programs ): “The following para gra p hs describ e the methods for making certain calculations inconjunction with de

terminations made und er the regulations int h is sub

part. Exce pt as otherwise provided in the regulations, these methods are the only methods that may be used in making these calcul ations. “1. De termi n ations of dispa r ity standa rd c o mpli

ance under § 222.162(b )(1). “(a) The determinations of disparity in cur r ent ex

penditures or revenue per pupil are made by— “(i) Rankin g all LEAs having si milar grade levels within the State on the basis of current expenditures or revenue per pupil for the second preceding fiscal22 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION Appendix B t oopinion of t h eCourt year before the year of determination; “(ii) Identifying those LEAs in each rankin g 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 l o wer curre nt expenditure or revenue per pupil fig u re from t h e higher for those agencies identified in paragraph (ii) and dividing the difference by the lower figure.

. . . . . “(b) In cas e s under §222.162(b), where se parate computations are made for different groups of LEAs, the disparity percentage for each group is obtained in the manner described in paragra p h (a) above. Then the weighted average disparity percentage for the State as a whole is det e rmined by— “(i) Multiplying the di sparity percentage for each group by t h e total number of pupils receiving free public education in the schools in t hat group; “(ii) Summing the figures obtained in paragrap h (b)(i); and “(iii) Dividing the sum obtained in paragra p h (b)(ii) by the total number of pupils for all the groups.
EXAMPL E Group 1 (grades 1–6), 8 0 ,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% Dispari t y ”_________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
S TEVENS , J ., co ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 50 8 ZUNI PUBLIC SCHOOL DI STRI CT NO. 89, ET AL ., PETITION ERS v. DE PARTM E N TOF E D U CATION ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Apr il 17, 20 0 7 ] J USTICE S T EVEN S , conc urring. In his oft-cited opinion for the Co urt in Griff inv. Oce

anic Contr a ctors, Inc. , 458 U. S. 564, 571 (1982), thenJustice Rehnquist wisely acknowledged tha t“i n rare case s the literal application of a statute will produce a result demonstrably at odds with the in tentions of its drafters , and those i n tentions must be controlling.” And in United Sta t esv. R o n Pair Enter p ris es, Inc. , 489 U. S. 235, 24 2 (1989), the Court began its anal ysis of the questionof statutory construction by restating the proposition th a t “[i]n such c a ses, the intention of the drafters, rather tha n the strict language, c o ntrols.” J USTICE S CALIA provide d the decisive fifth vote for the majority in that c a se. Today he correctly obse rves t hat a judicial decision that departs from statutory text mayrepresent “policy-driv e n interpretati on.” Post , a t3 (dissenti n g opinion). As long as that drivin g policy is f a ithful to t h e intent of Congress (o r, as in this case, aims only to give effect to such intent)

— which itm u st be if it is to overri de a stric ti n terpretati on of the text—the decision is also a correct performance of the judicial function. J USTICE S CALIA’s a r gu me nt to day rests on the incorrect premise that every policy-drive n interpretati on implements a judge’s personal view of sound polic y, rather than a faithful attempt to carry o u t2 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S TEVENS , J ., co ncu rrin g the will of the legis l ature. Quite t h e contrary is true of t h e work of th e judges wi th whom I have worked for man y years. If we presume that our judges are intellectuall y honest—as I do—there is no reas on to fear “policy-driven interpretati on[s]” of Act s of Congress. In Chevron U. S. A. Inc. v. Na tu ral Resour c es D e fens e Council, Inc., 467 U. S. 837, 842 (1984), we acknowledge d that when “ t he intent of Congress is clear [from the statu

tory tex t], that is the end of the matter.” But we als o made quite clear that “admin istrat i ve constructions which are contrar yto clear congre ssional intent” must be re

jected. Id. , at 843, n. 9. In that unanimous opinion, w e explained: “If a court, employing traditional tools of st atutory constructio n , ascertains that Congress had an inten

tion on the precise question at iss u e, that intention is the law and must be given effect.” Ibid

. Analysis of legislative history is, of course, a tradition al tool of statutory construction. 1 There is no reason why we must confine ourselves to, or beginour analys is with, the statutory text if other tools of statutory construction p r o vide better evidence of congressi onal intent with respect to the precise point at issue. As the Court’s opiniondemonstra tes, this is a quintes

sential example of a case in which the statu t ory te xt was obviously enacted to adopt the rule that t h e Secretar y 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 i s the prod uct of a m o re direct route to th e Court’s pat e ntly correc tconclu sion

. This hap pens to be a

——————

1 See, e. g
. , Wi sc onsinPub licInter v eno rv. M o rtie r, 501 U. S. 597, 610, n . 4 (19 91); Steelwo rk ersv. Weber, 443 U. S. 1 93, 2 30– 25 3 (1 97 9 ) (Rehnq uis t , J ., dis s e nt ing).3 Cite as: 55 0 U

. S. ____ (2007)
S TEVENS , J ., co ncu rrin g case in which the legislative history is pellucidly clear an d the statutor y tex tis dif f icult to fat h om. 2 Moreover, it is a case in which I can n ot imagine anyone accusing a n y 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 questionat issue,” I would affirm the judg

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

tioners’ literal readingof the stat utory tex t was correc t

. 3 The only “policy” by which I ha ve been driven is that which this Court ha s endorsed on repeat ed occasions regarding the importance of remaining faithful to Con

gress’ intent.

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2 Cont ra ry t oJ US TI CE S CALIA , I find itfa r more likely t h a tt h e Con

g r ess th at v o ted “w ith o u tc o mmen torc l ar ific ation ,” ante , at 8 (major i t y opinion), t oadoptt h e 19 94 s t at ut ory la ngua ge relied on t h e endors e mentof it s s p ons o rs , who int r oduced t h elegis l a t i on “ o n b e ha lf of t h e admin i s t r atio n ,” see 139 Con g . Rec

. 2 341 6 (19 93) ( r emar ks of S e n . Kennedy) a n d id. , at 23514 ( r emarks of Sen. Jeffords), a n d the fact that s uch la ngua gewa s dra f t e d a n d propos ed b yt h e U. S

. Depa rt mentof Education, rather thana parsing of its obscure statutory text.

Moreove r , I a s s u me t h a t , rega rdles s of t h e s t at ut ory la ngua ge ’s s u p pos e d cla r it y, a n y compet entcouns el cha llenging t h e va lidit y of a presumptively valid federal regulati onwou l d ex amin e th e legi slat iv e h i stor yof its au th or izin gstatu te befor efilin gsu it.

3 See Churc h of Holy Trinityv. United States , 143 U. S. 457, 4 5 9 (189 2) (“It is afamili arr u l e, th at a th in gmaybe w i th inth e letterof the sta t u t e an d y e t n o t w i th inthe statu te, bec a u s e n o t w i th in its spir it, n o r within the int e ntion of its makers”)._________________

_________________ 1 Cite as: 55 0 U

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K ENNEDY , J ., c o ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 50 8 ZUNI PUBLIC SCHOOL DI STRI CT NO. 89, ET AL ., PETITION ERS v. DE PARTM E N TOF E D U CATION ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Apr il 17, 20 0 7 ] J USTICE K ENNEDY , w i th whom J USTICE ALITO joins, concurring. The district courts and courts of appeals, as well a s this Court, should follow the framework set forth in Chevro n U. S. A. Inc. v. Natura l Resources Defens eCo uncil, Inc. , 467 U. S. 837 (1984), even when departure from that framework might serve purposes of exposition. Whe n considering an admini strative ag ency’s interp retation of a statute, a c o urt first d e termines “whether Co ngress has directly spo k en to the precise question at issue.” Id., at 842. If so, “that is the end of the matter.” Ibid. O n lyif “Congress has not dir e ctly addre ssed the pr ecise qu esti on at issue” should a court consider “whetherthe agency’s answer is b a sed on a p e rmissible c o nstruction of the sta t

ute.” Id., at 843. In this case, the Cour t is correct to find that the plain language of the statute is ambi guous. It is proper, there

fore, to invoke Chevron ’s rule of deference. The opinion of the Court, however, inverts Chev ron ’s logical progression. Were the inversion to become systemic, it would create the impression that agency polic y co ncerns, 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 wou l d have been2 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION K ENNEDY , J ., c o ncu rrin g preferable, and more faithful to Chevron , to arrange th e opinion diff erently. Still, we mus tgive deference to the author of an opinion i nmatters of exposition ; and because the point does not affect the outcome, I join the Court’s opinion._________________

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S CALIA , J., dissenting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 50 8 ZUNI PUBLIC SCHOOL DI STRI CT NO. 89, ET AL ., PETITION ERS v. DE PARTM E N TOF E D U CATION ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Apr il 17, 20 0 7 ] J USTICE S CALIA , with whom T HE C HIEF J US T I C E and J USTICE T HOMASjoin, and withwhom J US TICE S OUTER joins as to Part I, dissenting. In Church of the Holy Trinityv. Un ited S t a t es , 143 U. S. 457 (1892), this Court conceded that a church’s act of contractin gwith apro s pective rec t or fell wit h in the plain meaning of a federal labor statute, but nevertheless did not apply the statute to the church: “It is a f a miliar rul e ,” the Court pronounced, “that a thing may be within the letter of the statute and yet notwithin the statute, be

cause not within its spirit, nor w i thin the intention of its makers.” Id., at 459. That is a judge-empowering proposi

tion if ther e ever was one, andi nthe century since, the Court has wisely retreated from it, in words if not always in actions. But today Church of the Holy Tri n ityarises, Phoenix-like, from the ashes. The Court’s contrary asser

tions aside, today’s decision is n o thing other than th e elevation o f judge-supposed le gis l ative inten tover clear statutory te xt. The plain langua ge of the federal Impact Aid statute clearly and unambiguously forecloses t h e Secretary of Education’s pref erredmethodology for deter

mining whether a State’s school-f unding system is equa l

ized. Her selection of t hat methodology is therefore enti

tled to zer o deference under Ch evron U. S. A. Inc. v.2 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting Natu ral Re sources Def e nse Counc il, Inc. , 467 U. S. 83 7 (1984). I The very s tructu re of the Court’s opinion provides an obvious clue as to what is afoot. The opinio n purports to place a premium on the plain text of the Impact Aid stat

ute, ante , a t11, but it first ta kes us instead on a round

about tour of “[c]onsiderations ot her than language,” an te , at 7 (emphasis added)—page a f ter page of unenacted congressional intent and judi cia lly perceiv ed statutor y purpose, Part II–A, ante

. Only aft e r we are shown “why Zuni concentrates its argument upon lan guage alone,” ante, at 7 (i mpliedly a shameful p r actice, or at least indi

cation of a feeble case), are we informed how the statute’ s plain text does not unambiguousl y pr eclud ethe interpr e tation the Court thin ks best. P a rt II–B, ant e(beginn i ng “But wha tof the provision’s litera llanguage? 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 la nguage of the statute,” Duncanv. Walke r , 53 3 U. S. 167, 172 (2001), and replete with the affirmation that, when “[g]iven [a] straightfor

ward sta t u t ory comm and, there is no reason to resort to legislative history,” Uni t e dSt at es v. Gonzal e s , 520 U. S. 1, 6 (1997). Nor is this cart-before-the-horse approach jus t i

fied by the Court ’ s ex cuse t hat the statute before us is, after all, a technical one, ante , at 7. This Court, charged with interp reting, among othe r th ings, the Internal Reve

nue Code, the Employee Retire ment Income Security Ac t of 1974, and the Clea n Air Act, confronts technical lan

guage all the time, but we never se e fit to pron ounce upon what we th ink Congre ss meant a statute to s a y, and wh at we think sound policy would coun sel itto say , before con

sidering what it doess a y . A s a l m o s tam a j o r i t yo f t o d a y ’ s majority w o rries, “[w] ere th e inversion [of inquiry] to3 Cite as: 55 0 U

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S CALIA , J., dissenting become systemic, it would create the impression that agency policy concerns , rather tha nthe tradit i onal tools of statutory construction, are shaping the judicial interpreta

tion of statutes.” An te , at 1 (K EN NE DY , J., joined by ALITO , J., concurring). True enough—except I see no reason t o wait for the distortion to be come systemic before conclud

ing that th at is precisely what is happening in the presen t case. For s o me, policy-driven inter p retation is apparently just fine. See ante , at 1–2 (S TEVE NS , J., concurring). Bu t for everyone else, let us returnto Statutor y Interpretati on 101.

We must begin, as we always do, w i th the text. See, e.g. , Gonzales, s u pra , at 4. Under the federal Impact Aid p r o gram, 20 U. S. C. §770 1 et s e q. (2 000 ed. an d Supp. IV), States distributing state aid to local school districts (r e ferred to in the statute as “local educational agencies,” or “LEAs ” 1 ) may not take i n to accountthe amoun tof federal Impact Aid that its LEAs receive. See §770 9(a). But the statute ma kes an exce ption if the Secreta ry of Educatio n certifies that a State “has in effec ta program of State aid that equali z es expenditures for free public education among local educational agencies in the State.” §7709(b)(1) (2000 ed., S u pp. IV). C o ngress has specified a formula for the Secreta ry to use when making this equal i

zation determination: “[A] pro gram of State aid equ a lizes expe nditures among local educational agencies if . . . the am ount of per-pupil expenditures made by, or per-pupil revenues available to, the localeducational agency in the State with the hi ghest such per-pupil expenditures or reve nues did not exceed the amount of such per-pupil ex

-

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1 The Court ’s opinion ha s repla c ed t h e phra s e“ ‘loc al edu c ation al a g encies ’ ” w i th“ ‘loca ls chool dis t ricts

. ’ ” S e e ante , at 19. Wh ile I h av e no objection t othat termin ology, I will instead use “lo c al educationa l ag en c i es” an d “LEAs. ”4 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting penditures made by, or per-pupil revenues available to, the local educational agency in the State w i th the lowest such expenditures or revenues by more than 25 percent.” §7709(b)(2)(A). The Secret a ry is furt her instruc t ed, howev e r, that wh en making thi s determination, she shall “disregard loc a l educational agencies with per-pupil expenditures or reve

nues above the 95th percentile or below the 5th percentil e of such expenditures or reve nues in the State.” §7709(b)(2)(B)(i). It is this latter subsectionwhich con

cerns us here. The casual observer will notice that the Secretary’s implementi ng regulations do not lookmuch lik e the stat

ute. The regulations first requi re the Secreta ry to ran ka ll of the LEAs in a State (New Mexico has 89) according to their per-pupil expenditures or re venues. 34 CFR pt. 22 2, subpt. K, App. ¶(1)(a)(i) (2006). So far so good. But criti

cally here, the Sec r e t arymust then “[i]de ntif[y] those LEAs . . . that fall at the 95th an d 5th perce ntiles of t h e total number of pupils in attendancein the schools of thos e LEAs.” Id., ¶(1)(a)(ii) (emphasis added). Finally, the Secretar yc o mpares the per-pupil figures of those two LEAs for the purpose o f assessing whether a State exceeds the 25% disparity meas ure. Id., ¶(1)(a)(iii). The majority concludes that this method of calculation, with its focus on student population, is a permi ssible interpretation of the statute. It most ass u redly is not. To und erstand wh y, one first must look beyond the smok escreen that the Court la ys 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/100such that npe r cent of the population i s less than or equal to xn/100 .’ ” (quot

ing C. Clapham & J. Nicholson, The Concise Oxford Di c -5 Cite as: 55 0 U

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S CALIA , J., dissenting tionary of Mathematics 378 (3d ed. 2005))). This case is not a scary math probl e m; it is a straightfor w a rd mat t er of statutoryinterpretatio n . Andwe do not need the Court ’ s hypothetical cadre of number-crunching ami c i , ante , at 17 , to guide our way. There is no dispute that for pu rposes relevant here

“ ‘per centile’ refers to a division of a distribution of some population into 100 parts.’ ” Ante , at 12. And there is further no dispute tha tthe st a t ute concerns the percentile of “per-pupil expenditures or rev e nues,” for that is wha t the word “s uch” refers to. See 20 U. S. C. §7709(b)(2)(B)(i) (Secretar ys hall “disregard local ed ucational agencies wit h per-pu pil expenditu res or revenue s above the 95th percen

tile or below the 5th percentile of suchexpenditures or revenues inthe State” (emphasis a dded)). The question is: Whose per- pupil expenditures or revenues? Or, in the Court’s terminology, what “population” is assigned th e “charac teristic” “per-pu p il expenditure or revenue”? Ante , at 13. At first blush, seco nd blush, or twenty-seco nd blush, the answer is abundantly clear: local educational agencies. The statute requires the Secretar yt o “disregar d local educational agencies with” c e rtain per-pupil figures above or b e low specif ied percentiles of those per-pupil figures. §7709(b)(2)(B)(i). The attribute “per-pupil expen

ditur[e] or revenu[e]” is assi gned 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 percen t iles are d e termined from a listof (in New Mexico) 89 per-pupil expenditures or revenues represent

ing the 89 LEAs in the State. It is just that si mple. The Court makes littl e effort to defend the regulations as they ar e written. Instead, relying on a made-for

litigation theory that bears almost no relationship to the regulations themselves , the Court beli eves it has found a way to shoehorn those regulations into the statute. The6 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting Impact Aid statute is ambiguous, the Court says, because it “does not specify precisely what popula ti oni s t o b e ‘distributed’ ( i.e. , ranked accordi n g to the population’s corresponding values for the relevant characteristic ).” Ante , at 13

. Thus the Court finds that it is permissible f o r the Secret a ry to at tr ibute the characteristi c“per-pu p il expenditure or revenue” to pupils, with the re sult that th e Secretar y may “us[e]

. . . the Sta t e’s studen t sas the rele

vant population for calculating the specified percentiles.” Ante, at 14. Under that interpreta tion, as the State man

ages to explain with a straight face, “[i]n New Mexic o , during the time at issue, ther e 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 3 7 ; see als o id., at 36 (“Each and every studen t in an LEA an d in a [S]ta t e may be trea t ed as having his or her own ‘per-pupil’ expe n diture or revenue amount”). The Court consequentl y concludes that “linguistically speaking, one may attribut e the charact e ristic of per-pup il expenditure to each [stu

dent].” Ante , at 15. The sheer applesauce of this statutory interpretation should be o b vious. It is of course true that e v ery student in New Mexico causes an expenditure or produces a reve

nue that hi s LEA either enjoys (in the case of revenues) or is responsible for (i n the case of expenditures). But it simply defies any semblance of normal Engl ish usage to say that every pupil h a s a “ p er-p u pilexpenditure or reve

nue.” The word “ p er” connotes that the expenditure or revenue is a single av erage figure assigned to a unit the composite members of whichare individual pupils. An d the only such unit mentioned in the statute is the local educational agency. 2 S ee 20 U. S. C. §7709(b)(2)(B)(i). It

——————

2 The Courtma int a i ns t h at t h e phra s e “per-pupil expendit ures or r e v e nu es” ma yalso be a ttr i b u t ed to sc h o ols org r ade lev e ls. Ante , at 1 4

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S CALIA , J., dissenting is simply i rrelevant that “[n]o dictionary definition .

. . suggests th at there is any singl el o gical, mathematical, or statistical link betwee n[per-pupi lexpenditures or reve

nues] and . . . the nature of the relevant popula tion.” Ante , at 13–14. Of course there is not. It is the tex t a tissue which mustidentify th e relevant p o pulation, and it does s o here quite unambiguously: “ local educa t ional agen ci es with pe r-pupil expenditures or revenues.” §7709(b)(2)(B)(i) (emphasis added)

. That sa me phrase shows the utter ir relevance of th e Court’s excursus u p on the meanin gof the word “per.” See ante , at 15. It does indeed me an “ ‘ f or each or ‘ f or every’ ”—an d when it is contained in a clause that reads “local educational agen

cies with p e r-pupil ex penditures or revenues” it refers t o (and can only refer to) the av erage expenditure or revenue “for each” or “for every” student out of the to tal expendi

tures or rev e nues of the LEA. The violen ce done to this statute would be severe enough if the Secretar y usedthe actual expenditure or revenue for each individual pu pil. But in fact the Secr e tary deter m ines the per-pupil expenditure or revenue for each individual student by (gue ss what) comput ing the per-pu pil ex penditu re o rre venueof each LEA! As the Ne w Mexico brief explains: “[A] per-pu pil expenditure or revenue is anaverage number. Itis not the amount actually spent on any given pupil, an amount which wou l d be impos s ible to calculate in any meani ngful wa y. It is roughl y the to

tal amount expended by an LEA divided by the num

-

—————— Stan din galon e an d abstr ac ted fr om th e r e st of th e statu te, in deed it ma y. Butnotwhen ita ppears in t h e phras e“ local educational agen cie s wit h pe r - pu pil ex pe nd itur es orre ve nu es .” (Emphasi s ad ded.) In any ca s e , t h e fa ctt h a t“ p er-pupil expendit ur es or re venue s ” could be a p plied to c o mp osite en t i tie s oth e rth anLEAs doe s n o testabli s hth a t speaking of the “per-pupil expenditureorr e v e n u e ” of anin div i du al stu d en t makes an ysen s e (it does n o t).8 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting ber of pupils in that LEA.” B r ief for Respondent New Mexico Public Education Departme n t 36. The Secretary thus as signs an artificial number to each student that corresponds exactlyto his LEA’sper-pup i l expenditure or revenue. In other words, at the end of the day the Se cretar yher s elf acknowledges th at “per-pu p il expenditures or revenues” pertains to LEAs, and no t students. And she is interpreting “per -pupilexpenditur e or revenue” not as the Court sug g e sts (an amount attrib

utable to each student), but rathe r as I suggest (an a v er age amount for the pupils in a particular LE A). But she then proceeds to take a step not at all permitted by th e statutory fo rmula—in effect applying “per-pu p il expendi

ture or revenue” a second time (this time according to the Court’s fanciful interp retation of “per-pupil”) in order t o reach the result she desires. Of course, if t h e Secretary did apply the “per-pupil expenditure or revenue” only once, arraying students by their actual expe nditures or revenues, her entire system would collapse. Students from the sa me LEA, ra ther than a ppearing onthe list with the same per-pupil figure, would be located at vario u s points on t h e spectrum. And so long as an LEA had at least one st udent above the 95th or below the 5th percen

tile of pup il “per-pupil expe nditures or revenues,” that LEA would have to be excluded from the disparity anal y sis. The result would be a serious distortion of the dispar

ity determi nation, excluding man ymore LEAs (in fact, perhaps all of them) from the disparity calcu l ation. This would render the 25% disparity m e asure in §7709(b)(2)(A) all but mea n ingless. The Court makes one final attempt to rescue the Secre

tary ’s interpretation, appealin g to “statu t o ry contex t.” “Context h e re tells us,” it says, “that the instruction to identify sc hool districts with ‘per-pupil expenditures’ above the 95th percentile ‘of su ch expenditures’ is . .

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S CALIA , J., dissenting ambiguous, because b o th students and schooldistricts are of concern to the statute.” Ante , at 17. This is a complete non sequitu r. Of cours e students are a concern to a stat

ute dealing with school funding. But that do es not create any ambigu ity with respect to whether, under this statute , pupils can reasonably b e said to have their own “per-pupil expenditures or revenues.” It is simply irrati onal to say that the clear dispositions of a statute with r e gard to th e entities that it regulates (here LEAs) are rendered am

biguous when those en tities contai n sub-units that are the ultimate beneficiaries of the regulation (her e students). Such a pri n ciple of interpretati on—if it could be called that—w ould inject ambiguity into many statu t es indeed. The Court’s reliance onstatut ory context is allthe more puzzling since the co ntext obviously favors petitioner s. “The focus [of the Imp a ct Aid sta t ute] is upo nLE As, not upon the number of pupils.” 393 F. 3d 1158 , 1172 (CA10 2004) (O’Brien, J., dis s e nting), opinion vacated, 437 F. 3d 1289, 1290 (2006) (enbanc) (percuriam). In fact, the provisions at issue her e make not the slightes t mention of students. That is both sensible and predictable, since the Impact Aid program’s equalization formula is designed to address funding disparities bet w eenLEAs , not between studen t s . See 20 U. S. C. §7709(b)(2)(A) (referring to “a program of State aid [that] e quali z es expenditures among local educational agenc i es”); see a l so §7709(d) (1). Indeed, the whole point of th e equalization determination is to figure out whether St ates may reduce state aid to LEAs

. See §7709(a)

. In sum, the plain lan guage of th e Impact Aid statute compels the conclusion that the Secretary ’s method of calculation is ultra vires. Employing the form ula 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 D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting ing to win t h is case? The answer can only be the return of that miraculous redeemer of lost causes, Church of th e Holy Trin ity

. In order to contort the statu t e’s language beyond recognition, the Co urt must believe Congress’s intent so crystalline, the spirit of its legislation so glow

ingly bright, that the statutor y text should simply not be read to saywhatit sa ys. See Pa rt II–A, an te. J U S TICE S TEVE NS is quite candid on the point: He is willing to contradict t h e text. See ante , at 2–3 (concurring opinion). 3 But J USTI C E S T EVE NS ’ candor should not make his phi

losophy seem unassuming. He maintains that it is “a correct perf ormance of the judici al function” t o “override a strict inter p retation of the text” s o long as policy-driven interpretati on “is faithful to the int e nt of Congress.” Ante , at 1. But once one departs from “strict inter p retation of the text” (b y whi c h J USTICE S TE VENS means the actua l meaning of the text) fid e lity to the intent of Congress is a chancy thi n g. The only thin g we know for certain both Houses of Congress (and the President, if he signed the legislation) agreed u p on is the text. Legislative history can never produce a “ p ellucidly clear” pictur e , ante, at 3 (S TEVENS , J., concurri ng), of what a law was “intended” to mean, for the simple reason that it is never voted upon

— or ordinarily even seenor heard—by the “intending” lawgiving entity, which co nsists of both Houses of Congress

——————

3 Like J US TI CE S TEVENS , r e spon den t s th emselv es w e r eabov e boar d w h e nth eylitig ated th i s c a s eatth e a d min i str a t iv elev e l. Afterh e ar in g a r gumentfro mt h e Depa rt mentof Educa t i on, t h e Adminis t rat ive La w Judge (ALJ) p r otested: “The problem is I don ’ t see th e a m big u ityof th e s t at ut e.” App. 2 9

. To t h is t h e Depa rt ment ’s couns el r e s p onded: “ T he only wa y I ca n do t h a tis by referen c e t ot h e s t a t u t o ry purpos e.” Ibi d

. Laterinth e h e ar in g , th e ALJ s i mil a r l yas ked th e S t a t e of NewM e x i c o h o wits in ter p r e tationw a s c o n s isten tw i thth e sta t u t e. Th e State an sw er ed: “Liter ally , onthe fac eof th e w o r d s, per h a ps n o t, pr obabl y n o t.” Id., at 53. D e spi t e h i s misgiv in g s , th e ALJ u l ti matelydec i de d th at h edid n o t posse ss th e au th or ityto in v a lidate th e r e g u lation s. App. to Pet. forCer t . 38a, 51a.11 Cite as: 55 0 U

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S CALIA , J., dissenting and the President (if he did not veto the bil l). See U. S. Const., Art. I, §§1, 7. Thus, what judges believe Congre ss “meant” (ap a rt from th e text) has a disturbin gbut enti rely unsurprising tendency to be wha t ever judges think Co n gress must have mea n t, i.e., sh ould have meant. In Church of the Holy Trinity , every Justice on this Court disregarded the plain l anguage of a statu t e that forbade the hiring of a clergyman from abroad because, after all (they thought), “this is a Ch ristian nation,” 143 U. S., a t 471, so Congress coul d not have meant what it said. Is there any r e ason to believe that those Justic es were lack

ing that “i ntellectua[l] honest[y]” that J US TI CE S TE VEN S “presume[s]” all our ju dges possess, ante , at 2? Intellec

tual honest y does not exclude a b linding intellectual bia s . And even if it did, the system of judicial ame n datory veto over texts duly adopted by Congress bears no r e semblance to the system of lawmaking set for t h in our Constitution. J USTICE S T EVEN S ta ke s comfort in the fact that this is a case in wh ich he “can n ot imagine anyone accusing an y 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 it s judgment approves is the bettero n e. But even assuming that, in this rare case, the Justices’ departu re from the enacted law has nothi n g to do wi th their pol i cy viewth at it is a bad law, nothing in J UST I CE S TEVENS ’ se para t e opinion limits his approach to such rarities. Why should we suppose that in matters more likely to arouse the judicial libido—voting rights, anti d iscrimination laws, or environmental protection, to name only a few—a judge in the School of Textual Subversion would not find it conve n ient (yea, ri gh te o u s ! ) to assume t hat Congress must have meant, not what it said, but what he knows to be best? Lest there be any conf usion on th e point, I must discuss briefly the t w o cases J U S TICE S TEVE N Sputs forwar d , ante,12 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting at 1, as demonstrating this Cour t’s recent e n dorsement of his unorthodox views. They demonstrate just the oppo

site. Griffi nv. O ceani c Contr a c t ors, Inc. , 45 8 U. S. 564 (1982), involved a maritime statute that required the master of avesselto f u rnish unpaid wages to a s e aman within a specified peri od after the seaman’s d i scharge, and further p r o vided that a master w h o failed to do so witho u t sufficient cause “ ‘shall pay to the seaman a sum equal to two days’ p a y for each and every day duringwhich 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,” 4 58 U. S., at 57 4, and heldthat the seaman was entitled to double wages for every day duri ng which p a yment wa s delayed, even for the period in which he had obtained alternative employmen t

. The resu lt was that the seaman would rece ive approxi m ately $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 precisel y 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 Griff initself di d not qualify, it is hard to imagine what woul d. The principle J USTICE S TEVEN S would as

cribe to Griffinis in fact the one he advocated in dissent

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

ment dictat e s a depart ure from the literal text in order t o be faithful to the legislative will.” Id., at 586 (S TEVE NS , J. , dissenting). The second case J USTICE S TEVEN S relies up on, United Sta t esv. Ron Pair Enterpri se s, Inc. , 489 U. S. 235 (1989 ), is equally inapt. The Court’ s opinion there (unlik e the one here) explai ned that our analysis “must begin . . . with the language of the statute itself ,” a n d concluded that th at13 Cite as: 55 0 U

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S CALIA , J., dissenting was “also where the inquiry should end, for where . . . the statute’s language is plain, ‘thesole function of the courts is to enforce it according to its terms.’ ” Id. , at 241 (quot

ing Camine ttiv. Uni t ed Sta t es , 24 2 U. S. 470, 485 (1917)). My “fifth vote” in RonPairwas th us only “decisive,” ante , at 1 (S TE VEN S , J., conc urring), in reaffirming this Cour t’s adherence to statutory text, de cisively preventing it from falling off the precipice it plunges over today. Contrar yto the Court and J USTI C E S TE VEN S , I do not believe thatwhat we are sure the Legislature meantto sa y can trump what it didsay. Citizens arrange their affair s not on the basis of their legislat ors’unexpressed inten t , but on the basis of the law as it is written and promul

gated. I think it terribly unfair to expect that the t w o rural school districts who are petitioners here should have pored over some 30 ye ars of re gulatory history to divin e Congress’s “real” objective (and with it the “r eal” intent that a majo rity of Justi ces would fi nd honest and true). To be governed bylegislated te xt rather thanlegislators’ intentions i s what it m e ans to be “a Govern ment of la ws, not of men

. ” And in the last analysis the opposite ap

proach is no more ben e ficial to the governors than it is to the governed. By “depriving legislators of the assurance that ordina ry terms, u s ed in an ordinary context, will be given a pre d ictable 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) (S CALIA , J., dissenting). I do not pu rport to kn ow whatCo ngress thought it wa s doing when it amended the Impact Aid program in 1994. But even indulging J USTICE S TE VENS ’erroneous premi s e that there exists a “legislative intent” separate and apart from the statutory text, ante , at 1 (concurri ng opinion), I do not see how the Co urt can possibly say, with any meas

ure of confidence, thatCongress wished one thing rath er than anoth er. There i s ample evidence, for example, tha t14 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting at the time it amended the Impa ct Aidstat ute, Congre ss knew exactl y how to incorporat e student population into a disparity ca lculation. Most prominently, in the very same Act that a dded §7709 (b)(2)(B)(i) to the Imp a ct Aid pro

gram, Congress establi s hed the E d ucation Finance Incen

tive Progra m, known as EFIG

. See Improving America’ s Schools Act of 1994, 108 Stat. 357 5. That sta t ute allocates grants to S t ates based in part on an “equity factor” whic h requires adisparity calculation similar to that in the Impact Aid statute. See 20 U. S. C. §6337(b)(1)(A) (200 0 ed., Supp. IV). InEFIG, however, Congress specificall y required the Secretaryto take student population into account: “[ T]he Secretary s hall weigh the variation be

tween per-pupil expenditures in each localeducational ag enc y. . . accordin g to the numb er of pupils serv ed by th e local educa t ional agen cy .” §6337(b)(3)(A)(ii)(II) (emphasi s added); see also Brief f o r Federal Respondent 28–29. An d there is more. In EFIG, Congres s expressly providedth at a State would be acc o rded a favorable “eq u ity factor” rating if it was considered equalized under th e Secretar y ’s Imp a c tA i d re g u lat i o ns . See §6337(b)(3)(B) (2000 ed., Supp. IV). Congress thus explicitly incorporated the Impact Aidregulations into EFIG, but did no such thing with respec t to the Impact Aid st atute itself. All this on the very sa me day. Nor do I see any significance in the fact that no legisla

tor in 1994 expressed the view th at §7709(b)(2)(B)(i) wa s designed to upend the Secreta ry’s equalizati o n formula. Ante , at 8 (majority opinion). Itis quite plaus ible—indeed, eminently plausible—t hat the M e mbers of Congress took the plain meaning of the langu a ge which the Secr eta r y himself hadproposed to be what the Secretar y himself ha d previously been doing. It is bad enough for this Court to consider legislative materials beyond the statutory text i n aid of resolving ambiguity, but it is truly unreasonabl e to requiresuch extratextual evidence as a precondition for15 Cite as: 55 0 U

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S CALIA , J., dissenting enforcing an unambiguouscongressiona lmandate. See Koons Buick Pontiac GM C, Inc. v. Nigh , 543 U. S. 50, 73 – 74 (2004) ( S CALI A , J., dissenting). The Court points to t h e fact that “n o Member of Congress has ever criticized th e method the [Secretar y ’s] regulation[s] sets forth.” Ante , at 8. But can it really be that this ca se turns, in the Court’s view, on whether a freshman Congressman from New Mexico gave a floor speech that only late-night C–SPAN junk ies would witness? The on ly fair inferen c e from Co n gress’s silence is that Congre ss had nothing further to sa y, its statutory text doing all of the ta lking. Finally, the Court expresses its belief that Congress must have intended to adopt the Secretary’s pre-1994 disparity te st because that testis the more rea s onable one, better able to accountfor S t ates with smal l numbers of large LEAs, or large numbers of small ones. See ante , a t 8–11. This, to tell the truth, is the core of the opinion. As I have suggested, it is no accident that the co untertextua l legislative i n tent judge s perceive invariablya ccords with what jud g es think best. It seems to me, however, that th is Court is no more capable of sa ying with cer t ainty what is best in this area than it is of sayi ng with certainty (a pa rt from the text) what Congress intended. There is good reason to be concerned—in the implementation of a stat

ute that ma kes a limited except ion for States that have “in effect a program of State aid that equalizes expenditures for free pu blic education among local educa t ional a gen cies ,” 20 U. S. C. §7709 (b)(1) (2000 ed., Supp. IV) (empha

sis added)—that the Secretar y ’s methodology eliminates from the disparity calculation t oo many LEAs

. In the certification at issue in this very case, the Secretar yex cluded 23 of New Mexico’s 89 LEAs, approxi m ately 26%. Is this Court suchan expert in s c hool finance that it ca n affirm the desirability of excluding one in four of New Mexico’s LEAs from consideration? As for the Secretar y ’s concerns about the discrepancy16 ZUNI PUBLIC SCHOOL D I ST. v. DEPARTMENT OF EDUCATION S CALIA , J., dissenting between large and sma ll LEAs, do es the Court have an y basis for its apparent confidence that other parts of the Impact Aid statute do not adequ a tely address the prob

lem? Immediately after setting forth the 95 th and 5th percentile cutoffs, §7709(b)(2)(B)(i), the statute instructs the Secreta ry to “ta ke into a ccount the extent to which a program of State aid re flects the additional cost of provid

ing free public education in particu lar types of local educa

tional agen cies, such as those that are geographically isolated, orto particular types of students, such as chil

dren withdisabiliti e s.” §7709(b)(2)(B)(ii). Res p ondents do not explain why t h e Secretary couldnot use §7709(b)(2)(B)(ii) to temper any unintended effects of §7709(b)(2)(B)(i). Respondents further ma intain that States could take adva ntage of the statute’s pl ain meanin g by subdividing their LEAs. But again, the statute itself contains a remedy. Under §7713(9)(B)(ii), “[t]he term ‘local educational agen cy’ does not include an y agency or school authority that t h e Secre tar ydetermines on a caseby-case basis . . . is n o t cons tituted 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 th e two, the r u le of law demands th at the latte r prevail. This case will live with Church of the Holy Trinity as an exemplar of judicial disr egard of crysta l -clear text. We must interpret the law as Con gress has w r itten it, not as we would wish it to be. I would reverse the judgment of the Court of Appeals._________________

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S OUTER , J., dissenting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 50 8 ZUNI PUBLIC SCHOOL DI STRI CT NO. 89, ET AL ., PETITION ERS v. DE PARTM E N TOF E D U CATION ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Apr il 17, 20 0 7 ] J USTICE S OUTER , dissenting. I agree with the Court that Congress probabl y intended, or at least understood, that the Secretary wo uld continue to follow the methodology devi sedprior to pa ssage of the current sta t ute in 1994, see ante , at 7–8. But for reasons set out in J USTICE S CALIA’s dissent, I find the statutory language unambiguous and inapt to authorize that meth

odology, and I therefore join Part I of his diss enting opin

ion.