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

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

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

DEPARTMENT OF EDUCATION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

No. 05–1508. Argued January 10, 2007—Decided April 17, 2007
The Federal Impact Aid Program provides financial assistance to local
school districts whose ability to finance public school education is ad
versely affected by a federal presence. The statute prohibits a State
from offsetting this federal aid by reducing state aid to a local dis
trict. To avoid unreasonably interfering with a state program that
seeks to equalize per-pupil expenditures, the statute contains an ex
ception permitting a State to reduce its own local funding on account
of the federal aid where the Secretary of Education finds that the
state program “equalizes expenditures” among local school districts.
20 U. S. C. §7709(b)(1). The Secretary is required to use a formula
that compares the local school district with the greatest per-pupil ex
penditures in a State to the school district with the smallest per-pupil
expenditures. If the former does not exceed the latter by more than
25 percent, the state program qualifies as one that “equalizes expen
ditures.” In making this determination, the Secretary must, inter
alia, “disregard [school districts] with per-pupil expenditures . . .
above the 95th percentile or below the 5th percentile of such expendi
tures in the State.” §7709(b)(2)(B)(i). Regulations first promulgated
30 years ago provide that the Secretary will first create a list of
school districts ranked in order of per-pupil expenditure; then iden
tify the relevant percentile cutoff point on that list based on a specific
(95th or 5th) percentile of student population—essentially identifying
those districts whose students account for the 5 percent of the State’s
total student population that lies at both the high and low ends of the
spending distribution; and finally compare the highest spending and
lowest spending of the remaining school districts to see whether they
satisfy the statute’s requirement that the disparity between them not
2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Syllabus

exceed 25 percent.
Using this formula, Department of Education officials ranked New
Mexico’s 89 local school districts in order of per-pupil spending for
fiscal year 1998, excluding 17 schools at the top because they con
tained (cumulatively) less than 5 percent of the student population
and an additional 6 districts at the bottom. The remaining 66 dis
tricts accounted for approximately 90 percent of the State’s student
population. Because the disparity between the highest and lowest of
the remaining districts was less than 25 percent, the State’s program
“equalize[d] expenditures,” and the State could offset federal impact
aid by reducing its aid to individual districts. Seeking further re
view, petitioner school districts (Zuni) claimed that the calculations
were correct under the regulations, but that the regulations were in
consistent with the authorizing statute because the Department
must calculate the 95th and 5th percentile cutoffs based solely on the
number of school districts without considering the number of pupils
in those districts. A Department Administrative Law Judge and the
Secretary both rejected this challenge, and the en banc Tenth Circuit
ultimately affirmed.
Held: The statute permits the Secretary to identify the school districts
that should be “disregard[ed]” by looking to the number of the dis
trict’s pupils as well as to the size of the district’s expenditures per
pupil. Pp. 7–17.
(a) The “disregard” instruction’s history and purpose indicate that
the Secretary’s calculation formula is a reasonable method that car
ries out Congress’ likely intent in enacting the statutory provision.
For one thing, that method is the kind of highly technical, specialized
interstitial matter that Congress does not decide itself, but delegates
to specialized agencies to decide. For another, the statute’s history
strongly supports the Secretary. The present statutory language
originated in draft legislation sent by the Secretary himself, which
Congress adopted without comment or clarification. No one at the
time—no Member of Congress, no Department of Education official,
no school district or State—expressed the view that this statutory
language was intended to require, or did require, the Secretary to
change the Department’s system of calculation, a system that the
Department and school districts across the Nation had followed for
nearly 20 years. Finally, the purpose of the disregard instruction,
which is evident in the language of the present statute, is to exclude
statistical outliers. Viewed in terms of this purpose, the Secretary’s
calculation method is reasonable, while the reasonableness of Zuni’s
proposed method is more doubtful as the then Commissioner of Edu
cation explained when he considered the matter in 1976. Pp. 7–11.
(b) The Secretary’s method falls within the scope of the statute’s
 Cite as: 550 U. S. ____ (2007) 3

Syllabus

plain language. Neither the legislative history nor the reasonable
ness of the Secretary’s method would be determinative if the statute’s
plain language unambiguously indicated Congress’ intent to foreclose
the Secretary’s interpretation. See Chevron, supra, at 842–843. That
is not the case here. Section 7709(b)(2)(B)(i)’s phrase “above the 95th
percentile . . . of . . . [per-pupil] expenditures” (emphasis added) limits
the Secretary to calculation methods involving per-pupil expendi
tures. It does not tell the Secretary which of several possible meth
ods the Department must use, nor rule out the Secretary’s present
formula, which distributes districts in accordance with per-pupil ex
penditures, while essentially weighting each district to reflect the
number of pupils it contains. This interpretation is supported by dic
tionary definitions of “percentile,” and by the fact that Congress, in
other statutes, has clarified the matter at issue to avoid comparable
ambiguity. Moreover, “[a]mbiguity is a creature not [just] of defini
tional possibilities but [also] of statutory context.” Brown v. Gardner,
513 U. S. 115, 118. Context here indicates that both students and
school districts are of concern to the statute, and, thus, the disregard
instruction can include within its scope the distribution of a ranked
population consisting of pupils (or of school districts weighted by pu
pils), not just a ranked distribution of unweighted school districts
alone. Finally, this Court is reassured by the fact that no group of
statisticians, nor any individual statistician, has said directly in
briefs, or indirectly through citation, that the language in question
cannot be read the way it is interpreted here. Pp. 11–17.
437 F. 3d 1289, affirmed.

BREYER, J., delivered the opinion of the Court, in which STEVENS,
KENNEDY, GINSBURG, and ALITO, JJ., joined. STEVENS, J., filed a concur
ring opinion. KENNEDY, J., filed a concurring opinion, in which ALITO,
J., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS, J., joined, and in which SOUTER, J., joined as to Part
I. SOUTER, J., filed a dissenting opinion.
 Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1508
_________________

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

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE BREYER delivered the opinion of the Court.
A federal statute sets forth a method that the Secretary
of Education is to use when determining whether a State’s
public school funding program “equalizes expenditures”
throughout the State. The statute instructs the Secretary
to calculate the disparity in per-pupil expenditures among
local school districts in the State. But, when doing so, the
Secretary is to “disregard” school districts “with per-pupil
expenditures . . . above the 95th percentile or below the 5th
percentile of such expenditures . . . in the State.” 20
U. S. C. §7709(b)(2)(B)(i) (emphasis added).
The question before us is whether the emphasized statu
tory language permits the Secretary to identify the school
districts that should be “disregard[ed]” by looking to the
number of the district’s pupils as well as to the size of the
district’s expenditures per pupil. We conclude that it does.
I
A
The federal Impact Aid Act, 108 Stat. 3749, as amended,
20 U. S. C. §7701 et seq., provides financial assistance to
2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

local school districts whose ability to finance public school
education is adversely affected by a federal presence.
Federal aid is available to districts, for example, where a
significant amount of federal land is exempt from local
property taxes, or where the federal presence is responsi
ble for an increase in school-age children (say, of armed
forces personnel) whom local schools must educate. See
§7701. The statute typically prohibits a State from offset
ting this federal aid by reducing its own state aid to the
local district. If applied without exceptions, however, this
prohibition might unreasonably interfere with a state
program that seeks to equalize per-pupil expenditures
throughout the State, for instance, by preventing the state
program from taking account of a significant source of
federal funding that some local school districts receive.
The statute consequently contains an exception that per
mits a State to compensate for federal impact aid where
“the Secretary [of Education] determine[s] and certifies . . .
that the State has in effect a program of State aid that
equalizes expenditures for free public education among
local [school districts] in the State.” §7709(b)(1) (2000 ed.,
Supp. IV) (emphasis added).
The statute sets out a formula that the Secretary of
Education must use to determine whether a state aid
program satisfies the federal “equaliz[ation]” requirement.
The formula instructs the Secretary to compare the local
school district with the greatest per-pupil expenditures to
the school district with the smallest per-pupil expendi
tures to see whether the former exceeds the latter by more
than 25 percent. So long as it does not, the state aid
program qualifies as a program that “equalizes expendi
tures.” More specifically the statute provides that “a
program of state aid” qualifies, i.e., it “equalizes expendi
tures” among local school districts if,
“in the second fiscal year preceding the fiscal year for
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Opinion of the Court

which the determination is made, the amount of per-
pupil expenditures made by [the local school district]
with the highest such per-pupil expenditures . . . did
not exceed the amount of such per-pupil expenditures
made by [the local school district] with the lowest
such expenditures . . . by more than 25 percent.”
§7709(b)(2)(A) (2000 ed.).
The statutory provision goes on to set forth what we
shall call the “disregard” instruction. It states that, when
“making” this “determination,” the “Secretary shall . . .
disregard [school districts] with per-pupil expenditures . . .
above the 95th percentile or below the 5th percentile of such
expenditures.” §7709(b)(2)(B)(i) (emphasis added). It adds
that the Secretary shall further:
“take into account the extent to which [the state pro
gram reflects the special additional costs that some
school districts must bear when they are] geographi
cally isolated [or when they provide education for]
particular types of students, such as children with
disabilities.” §7709(b)(2)(B)(ii).
B
This case requires us to decide whether the Secretary’s
present calculation method is consistent with the federal
statute’s “disregard” instruction. The method at issue is
contained in a set of regulations that the Secretary first
promulgated 30 years ago. Those regulations essentially
state the following:
When determining whether a state aid program “equal
izes expenditures” (thereby permitting the State to reduce
its own local funding on account of federal impact aid), the
Secretary will first create a list of school districts ranked
in order of per-pupil expenditure. The Secretary will then
identify the relevant percentile cutoff point on that list on
the basis of a specific (95th or 5th) percentile of student
4 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

population—essentially identifying those districts whose
students account for the 5 percent of the State’s total
student population that lies at both the high and low ends
of the spending distribution. Finally the Secretary will
compare the highest spending and lowest spending school
districts of those that remain to see whether they satisfy
the statute’s requirement that the disparity between them
not exceed 25 percent.
The regulations set forth this calculation method as
follows:
“[D]eterminations of disparity in current expenditures
. . . per-pupil are made by—
“(i) Ranking all [of the State’s school districts] on the
basis of current expenditures . . . per pupil [in the
relevant statutorily determined year];
“(ii) Identifying those [school districts] that fall at the
95th and 5th percentiles of the total number of pupils
in attendance [at all the State’s school districts taken
together]; and
“(iii) Subtracting the lower current expenditure . . .
per pupil figure from the higher for those [school dis
tricts] identified in paragraph (ii) and dividing the dif
ference by the lower figure.” 34 CFR pt. 222, subpt.
K, App., ¶1 (2006) (emphasis deleted).
The regulations also provide an illustration of how to
perform the calculation:
“In State X, after ranking all [school districts] in order
of the expenditures per pupil for the [statutorily de
termined] fiscal year in question, it is ascertained by
counting the number of pupils in attendance in those
[school districts] in ascending order of expenditure
that the 5th percentile of student population is
reached at [school district A] with a per pupil expendi
ture of $820, and that the 95th percentile of student
population is reached at [school district B] with a per
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Opinion of the Court

pupil expenditure of $1,000. The percentage disparity
between the 95th percentile and the 5th percentile
[school districts] is 22 percent ($1000−$820 =
$180/$820).” Ibid.
Because 22 percent is less than the statutory “25 percent”
requirement, the state program in the example qualifies
as a program that “equalizes expenditures.”
C
This case concerns the Department of Education’s appli
cation of the Secretary’s regulations to New Mexico’s local
district aid program in respect to fiscal year 2000. As the
regulations require, Department officials listed each of
New Mexico’s 89 local school districts in order of per-pupil
spending for fiscal year 1998. (The calculation in New
Mexico’s case was performed, as the statute allows, on the
basis of per-pupil revenues, rather than per-pupil expendi
tures. See 20 U. S. C. §7709(b)(2)(A). See also Appendix
B, infra. For ease of reference we nevertheless refer, in
respect to New Mexico’s figures and throughout the opin
ion, only to “per-pupil expenditures.”) After ranking the
districts, Department officials excluded 17 school districts
at the top of the list because those districts contained
(cumulatively) less than 5 percent of the student popula
tion; for the same reason, they excluded an additional 6
school districts at the bottom of the list.
The remaining 66 districts accounted for approximately
90 percent of the State’s student population. Of those, the
highest ranked district spent $3,259 per student; the
lowest ranked district spent $2,848 per student. The
difference, $411, was less than 25 percent of the lowest
per-pupil figure, namely $2,848. Hence, the officials found
that New Mexico’s local aid program qualifies as a pro
gram that “equalizes expenditures.” New Mexico was
therefore free to offset federal impact aid to individual
districts by reducing state aid to those districts.
6 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

Two of New Mexico’s public school districts, Zuni Public
School District and Gallup-McKinley County Public School
District (whom we shall collectively call Zuni), sought
further agency review of these findings. Zuni conceded
that the Department’s calculations were correct in terms
of the Department’s own regulations. Zuni argued, how
ever, that the regulations themselves are inconsistent
with the authorizing statute. That statute, in its view,
requires the Department to calculate the 95th and 5th
percentile cutoffs solely on the basis of the number of
school districts (ranked by their per-pupil expenditures),
without any consideration of the number of pupils in those
districts. If calculated as Zuni urges, only 10 districts
(accounting for less than 2 percent of all students) would
have been identified as the outliers that the statute in
structs the Secretary to disregard. The difference, as a
result, between the highest and lowest per-pupil expendi
tures of the remaining districts (26.9 percent) would ex
ceed 25 percent. Consequently, the statute would forbid
New Mexico to take account of federal impact aid as it
decides how to equalize school funding across the State.
See N. M. Stat. Ann. §22–8–1 et seq. (2006).
A Department of Education Administrative Law Judge
rejected Zuni’s challenge to the regulations. The Secretary
of Education did the same. Zuni sought review of the
Secretary’s decision in the Court of Appeals for the Tenth
Circuit. 393 F. 3d 1158 (2004). Initially, a Tenth Circuit
panel affirmed the Secretary’s determination by a split
vote (2 to 1). Subsequently, the full Court of Appeals
vacated the panel’s decision and heard the matter en banc.
The 12-member en banc court affirmed the Secretary but
by an evenly divided court (6 to 6). 437 F. 3d 1289 (2006).
Zuni sought certiorari. We agreed to decide the matter.
 Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

II

A

Zuni’s strongest argument rests upon the literal lan
guage of the statute. Zuni concedes, as it must, that if the
language of the statute is open or ambiguous—that is, if
Congress left a “gap” for the agency to fill—then we must
uphold the Secretary’s interpretation as long as it is rea
sonable. See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 842–843 (1984). See
also Christensen v. Harris County, 529 U. S. 576, 589, n.
(SCALIA, J., concurring in part and concurring in judg
ment). For purposes of exposition, we depart from a nor
mal order of discussion, namely an order that first consid
ers Zuni’s statutory language argument. See Barnhart v.
Sigmon Coal Co., 534 U. S. 438, 450 (2002). Instead,
because of the technical nature of the language in ques
tion, we shall first examine the provision’s background
and basic purposes. That discussion will illuminate our
subsequent analysis in Part II–B, infra. It will also reveal
why Zuni concentrates its argument upon language alone.
Considerations other than language provide us with
unusually strong indications that Congress intended to
leave the Secretary free to use the calculation method
before us and that the Secretary’s chosen method is a
reasonable one. For one thing, the matter at issue—i.e.,
the calculation method for determining whether a state
aid program “equalizes expenditures”—is the kind of
highly technical, specialized interstitial matter that Con
gress often does not decide itself, but delegates to special
ized agencies to decide. See United States v. Mead Corp.,
533 U. S. 218, 234 (2001); cf. MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U. S.
218, 231, (1994); Christensen, supra, at 589, n. (opinion of
SCALIA, J.).
For another thing, the history of the statute strongly
supports the Secretary. Congress first enacted an impact
8 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

aid “equalization” exception in 1974. The exception origi
nally provided that the “ter[m] . . . ‘equaliz[ing] expendi
tures’ . . . shall be defined by the [Secretary].” 20 U. S. C.
§240(d)(2)(B) (1970 ed., Supp. IV). Soon thereafter, in
1976, the Secretary promulgated the regulation here at
issue defining the term “equalizing expenditures” in the
manner now before us. See Part I–B, supra. As far as we
can tell, no Member of Congress has ever criticized the
method the 1976 regulation sets forth nor suggested at
any time that it be revised or reconsidered.
The present statutory language originated in draft
legislation that the Secretary himself sent to Congress in
1994. With one minor change (irrelevant to the present
calculation controversy), Congress adopted that language
without comment or clarification. No one at the time—no
Member of Congress, no Department of Education official,
no school district or State—expressed the view that this
statutory language (which, after all, was supplied by the
Secretary) was intended to require, or did require, the
Secretary to change the Department’s system of calcula
tion, a system that the Department and school districts
across the Nation had followed for nearly 20 years, with
out (as far as we are told) any adverse effect.
Finally, viewed in terms of the purpose of the statute’s
disregard instruction, the Secretary’s calculation method
is reasonable, while the reasonableness of a method based
upon the number of districts alone (Zuni’s proposed
method) is more doubtful. When the Secretary (then
Commissioner) of Education considered the matter in
1976, he explained why that is so.
Initially the Secretary pointed out that the “exclusion of
the upper and bottom 5 percentile school districts is based
upon the accepted principle of statistical evaluation that
such percentiles usually represent unique or noncharacter
istic situations.” 41 Fed. Reg. 26320 (1976) (emphasis
added). That purpose, a purpose to exclude statistical
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Opinion of the Court

outliers, is evident in the language of the present statute.
The provision uses the technical term “percentile”; it
refers to cutoff numbers (“95th” and “5th”) often associated
with scientific calculations; and it directly precedes an
other statutory provision that tells the Secretary to ac
count for those districts, from among the middle 5th to
95th percentile districts, that remain “noncharacteristic”
in respect to geography or the presence of special students
(such as disabled students). See 20 U. S. C.
§§7709(b)(2)(B)(i)–(ii).
The Secretary added that under the regulation’s calcula
tion system the “percentiles” would be “determined on the
basis of numbers of pupils and not on the basis of numbers
of districts.” 41 Fed. Reg. 26324. He said that to base “an
exclusion on numbers of districts” alone “would act to
apply the disparity standard in an unfair and inconsistent
manner among States.” Ibid. He then elaborated upon
his concerns:
“The purpose of the exclusion is to eliminate those
anomalous characteristics of a distribution of expendi
tures. In States with a small number of large dis
tricts, an exclusion based on percentage of school dis
tricts might exclude from the measure of disparity a
substantial percentage of the pupil population in
those States. Conversely, in States with large num
bers of small districts, such an approach might ex
clude only an insignificant fraction of the pupil popu
lation and would not exclude anomalous
characteristics.” Ibid.
To understand the Secretary’s first problem, consider an
exaggerated example, say a State with 80 school districts
of unequal size. Suppose 8 of the districts include urban
areas and together account for 70 percent of the State’s
students, while the remaining 72 districts include primar
ily rural areas and together account for 30 percent of the
10 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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State’s students. If the State’s greatest funding dispari
ties are among the 8 urban districts, Zuni’s calculation
method (which looks only at the number of districts and
ignores their size) would require the Secretary to disre
gard the system’s 8 largest districts (i.e., 10 percent of the
number 80) even though those 8 districts (because they
together contain 70 percent of the State’s pupils) are
typical of, indeed characterize, the State’s public school
system. It would require the Secretary instead to measure
the system’s expenditure equality by looking only to non-
characteristic districts that are not representative of the
system as a whole, indeed districts accounting for only 30
percent of the State’s pupils. Thus, according to Zuni’s
method, the Secretary would have to certify a state aid
program as one that “equalizes expenditures” even if there
were gross disparities in per-pupil expenditures among
urban districts accounting for 70 percent of the State’s
students. By way of contrast, the Secretary’s method, by
taking into account a district’s size as well as its expendi
tures, would avoid a calculation that would produce re
sults so contrary to the statute’s objective.
To understand the Secretary’s second problem consider
this very case. New Mexico’s 89 school districts vary
significantly in respect to the number of pupils each con
tains. Zuni’s calculation system nonetheless forbids the
Secretary to discount more than 10 districts—10 percent
of the total number of districts (rounded up). But these
districts taken together account for only 1.8 percent of the
State’s pupils. To eliminate only those districts, instead of
eliminating districts that together account for 10 percent
of the State’s pupils, risks resting the “disregard” calcula
tion upon a few particularly extreme noncharacteristic
districts, yet again contrary to the statute’s intent.
Thus, the history and purpose of the disregard instruc
tion indicate that the Secretary’s calculation formula is a
reasonable method that carries out Congress’ likely intent
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Opinion of the Court

in enacting the statutory provision before us.
B
But what of the provision’s literal language? The mat
ter is important, for normally neither the legislative his
tory nor the reasonableness of the Secretary’s method
would be determinative if the plain language of the statute
unambiguously indicated that Congress sought to fore
close the Secretary’s interpretation. And Zuni argues that
the Secretary’s formula could not possibly effectuate Con
gress’ intent since the statute’s language literally forbids
the Secretary to use such a method. Under this Court’s
precedents, if the intent of Congress is clear and unambi
guously expressed by the statutory language at issue, that
would be the end of our analysis. See Chevron, 467 U. S.,
at 842–843. A customs statute that imposes a tariff on
“clothing” does not impose a tariff on automobiles, no
matter how strong the policy arguments for treating the
two kinds of goods alike. But we disagree with Zuni’s
conclusion, for we believe that the Secretary’s method falls
within the scope of the statute’s plain language.
That language says that, when the Secretary compares
(for a specified fiscal year) “the amount of per-pupil ex
penditures made by” (1) the highest-per-pupil-expenditure
district and (2) the lowest-per-pupil-expenditure district,
“the Secretary shall . . . disregard” local school districts
“with per-pupil expenditures . . . above the 95th percentile
or below the 5th percentile of such expenditures in the
State.” 20 U. S. C. §7709(b)(2)(B)(i). The word “such”
refers to “per-pupil expenditures” (or more precisely to
“per-pupil expenditures” in the test year specified by the
statute). The question then is whether the phrase “above
the 95th percentile . . . of . . . [per pupil] expenditures”
permits the Secretary to calculate percentiles by (1) rank
ing local districts, (2) noting the student population of
each district, and (3) determining the cutoff point on the
12 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

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Opinion of the Court

basis of districts containing 95 percent (or 5 percent) of the
State’s students.
Our answer is that this phrase, taken with absolute
literalness, limits the Secretary to calculation methods
that involve “per-pupil expenditures.” But it does not tell
the Secretary which of several different possible methods
the Department must use. Nor does it rule out the pre
sent formula, which distributes districts in accordance
with per-pupil expenditures, while essentially weighting
each district to reflect the number of pupils it contains.
Because the statute uses technical language (e.g., “per
centile”) and seeks a technical purpose (eliminating un
characteristic, or outlier, districts), we have examined
dictionary definitions of the term “percentile.” See 41 Fed.
Reg. 26320 (Congress intended measurements based upon
an “accepted principle of statistical evaluation” (emphasis
added)). Those definitions make clear that “percentile”
refers to a division of a distribution of some population
into 100 parts. Thus, Webster’s Third New International
Dictionary 1675 (1961) (Webster’s Third) defines “percen
tile” as “the value of the statistical variable that marks the
boundary between any two consecutive intervals in a
distribution of 100 intervals each containing one percent
of the total population.” A standard economics dictionary
gives a similar definition for “percentiles”:
“The values separating hundredth parts of a distribu
tion, arranged in order of size. The 99th percentile of
the income distribution, for example, is the income
level such that only one percent of the population
have larger incomes.” J. Black, A Dictionary of Eco
nomics 348–349 (2d ed. 2002).
A dictionary of mathematics states: “The n-th percentile is
the value xn/100 such that n per cent of the population is
less than or equal to xn/100.” It adds that “[t]he terms can
be modified, though not always very satisfactorily, to be
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Opinion of the Court

applicable to a discrete random variable or to a large
sample ranked in ascending order.” C. Clapham & J.
Nicholson, The Concise Oxford Dictionary of Mathematics
378–379 (3d ed. 2005) (emphasis deleted). The American
Heritage Science Dictionary 468 (2005) explains that a
percentile is “[a]ny of the 100 equal parts into which the
range of the values of a set of data can be divided in order
to show the distribution of those values.” And Merriam-
Webster’s Medical Desk Dictionary 612 (2002) describes
percentile as “a value on a scale of one hundred that indi
cates the percent of a distribution that is equal to or below
it.”
These definitions, mainstream and technical, all indi
cate that, in order to identify the relevant percentile cut
offs, the Secretary must construct a distribution of values.
That distribution will consist of a “population” ranked
according to a characteristic. That characteristic takes on
a “value” for each member of the relevant population. The
statute’s instruction to identify the 95th and 5th “percen
tile of such expenditures” makes clear that the relevant
characteristic for ranking purposes is per-pupil expendi
ture during a particular year. But the statute does not
specify precisely what population is to be “distributed”
(i.e., ranked according to the population’s corresponding
values for the relevant characteristic). Nor does it set
forth various details as to how precisely the distribution is
to be constructed (as long as it is ranked according to the
specified characteristic).
But why is Congress’ silence in respect to these matters
significant? Are there several different populations, rele
vant here, that one might rank according to “per-pupil
expenditures” (and thereby determine in several different
ways a cutoff point such that “n percent of [that] popula
tion” falls, say below the percentile cutoff)? We are not
experts in statistics, but a statistician is not needed to see
what the dictionary does not say. No dictionary definition
14 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

we have found suggests that there is any single logical,
mathematical, or statistical link between, on the one
hand, the characterizing data (used for ranking purposes)
and, on the other hand, the nature of the relevant popula
tion or how that population might be weighted for pur
poses of determining a percentile cutoff.
Here, the Secretary has distributed districts, ranked
them according to per-pupil expenditure, but compared
only those that account for 90 percent of the State’s pupils.
Thus, the Secretary has used—as his predecessors had
done for a quarter century before him—the State’s stu
dents as the relevant population for calculating the speci
fied percentiles. Another Secretary might have distrib
uted districts, ranked them by per-pupil expenditure, and
made no reference to the number of pupils (a method that
satisfies the statute’s language but threatens the problems
the Secretary long ago identified, see 41 Fed. Reg. 26324;
supra, at 4–5). A third Secretary might have distributed
districts, ranked them by per-pupil expenditure, but com
pared only those that account for 90 percent of total pupil
expenditures in the State. A fourth Secretary might have
distributed districts, ranked them by per-pupil expendi
ture, but calculated the 95th and 5th percentile cutoffs
using the per-pupil expenditures of all the individual
schools in the State. See 41 Fed. Reg. 26324 (considering
this system of calculation). A fifth Secretary might have
distributed districts, ranked them by per-pupil expendi
ture, but accounted in his disparity calculation for the
sometimes significant differences in per-pupil spending at
different grade levels. See 34 CFR §222.162(b)(1) (2006)
(authorizing such a system); id., pt. 222, subpt. K, App.
See also Appendix B, infra.
Each of these methods amounts to a different way of
determining which districts fall between the 5th and 95th
“percentile of per-pupil expenditures.” For purposes of
that calculation, they each adopt different populations—
 Cite as: 550 U. S. ____ (2007) 15

Opinion of the Court

students, districts, schools, and grade levels. Yet, linguis
tically speaking, one may attribute the characteristic of
per-pupil expenditure to each member of any such popula
tion (though the values of that characteristic may be more
or less readily available depending on the chosen popula
tion, see 41 Fed. Reg. 26324). Hence, the statute’s literal
language covers any or all of these methods. That lan
guage alone does not tell us (or the Secretary of Educa
tion), however, which method to use.
JUSTICE SCALIA’s claim that this interpretation “defies
any semblance of normal English” depends upon its own
definition of the word “per.” That word, according to the
dissent, “connotes . . . a single average figure assigned to a
unit the composite members of which are individual pu
pils.” Post, at 6 (dissenting opinion) (emphasis omitted).
In fact, the word “per” simply means “[f]or each” or “for
every.” Black’s Law Dictionary 1171 (8th ed. 1999); see
Webster’s Third 1674. Thus, nothing in the English lan
guage forbids the Secretary from considering expenditures
for each individual pupil in a district when instructed to
look at a district’s “per-pupil expenditures.” The remain
der of the dissent’s argument, colorful language to the
side, rests upon a reading of the statutory language that
ignores its basic purpose and history.
We find additional evidence for our understanding of the
language in the fact that Congress, in other statutes, has
clarified the matter here at issue thereby avoiding compa
rable ambiguity. For example, in a different education-
related statute, Congress refers to “the school at the 20th
percentile in the State, based on enrollment, among all
schools ranked by the percentage of students at the profi
cient level.” 20 U. S. C. §6311(b)(2)(E)(ii) (2000 ed., Supp.
IV) (emphasis added). In another statute fixing charges
for physicians services, Congress specified that the maxi
mum charge “shall be the 50th percentile of the customary
charges for the service (weighted by the frequency of the
16 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Opinion of the Court

service) performed by nonparticipating physicians in the
locality during the [prior] 12-month period.” 42 U. S. C.
§1395u(j)(1)(C)(v) (2000 ed.) (emphasis added). In these
statutes Congress indicated with greater specificity how a
percentile should be determined by stating precisely not
only which data values are of interest, but also (in the
first) the population that is to be distributed and (in the
second) the weightings needed to make the calculation
meaningful and to avoid counterproductive results. In the
statute at issue here, however, Congress used more gen
eral language (drafted by the Secretary himself), which
leaves the Secretary with the authority to resolve such
subsidiary matters at the administrative level.
We also find support for our view of the language in the
more general circumstance that statutory “[a]mbiguity is a
creature not [just] of definitional possibilities but [also] of
statutory context.” Brown v. Gardner, 513 U. S. 115, 118
(1994). See also FDA v. Brown & Williamson Tobacco
Corp., 529 U. S. 120, 132–133 (2000) (“[m]eaning—or
ambiguity—of certain words or phrases may only become
evident when placed in context” (emphasis added)). That
may be so even if statutory language is highly technical.
After all, the scope of what seems a precise technical chess
instruction, such as “you must place the queen next to the
king,” varies with context, depending, for example, upon
whether the instructor is telling a beginner how to set up
the board or telling an advanced player how to checkmate
an opponent. The dictionary acknowledges that, when
interpreting technical statistical language, the purpose of
the exercise matters, for it says that “quantile,” “percen
tile,” “quartile,” and “decile” are “terms [that] can be
modified, though not always very satisfactorily, to be
applicable to . . . a large sample ranked in ascending
order.” Oxford Dictionary of Mathematics, at 379.
Thus, an instruction to “identify schools with average
scholastic aptitude test scores below the 5th percentile of
 Cite as: 550 U. S. ____ (2007) 17

Opinion of the Court

such scores” may vary as to the population to be distrib
uted, depending upon whether the context is one of provid
ing additional counseling and support to students at low-
performing schools (in which case the relevant population
would likely consist of students), or one of identifying
unsuccessful learning protocols at low-performing schools
(in which case the appropriate population may well be the
schools themselves). Context here tells us that the in
struction to identify school districts with “per-pupil expen
ditures” above the 95th percentile “of such expenditures”
is similarly ambiguous, because both students and school
districts are of concern to the statute. Accordingly, the
disregard instruction can include within its scope the
distribution of a ranked population that consists of pupils
(or of school districts weighted by pupils) and not just a
ranked distribution of unweighted school districts alone.
Finally, we draw reassurance from the fact that no
group of statisticians, nor any individual statistician, has
told us directly in briefs, or indirectly through citation,
that the language before us cannot be read as we have
read it. This circumstance is significant, for the statutory
language is technical, and we are not statisticians. And
the views of experts (or their absence) might help us un
derstand (though not control our determination of) what
Congress had in mind.
The upshot is that the language of the statute is broad
enough to permit the Secretary’s reading. That fact re
quires us to look beyond the language to determine
whether the Secretary’s interpretation is a reasonable,
hence permissible, implementation of the statute. See
Chevron, 467 U. S., at 842–843. For the reasons set forth
in Part II–A, supra, we conclude that the Secretary’s
reading is a reasonable reading. We consequently find the
Secretary’s method of calculation lawful.
The judgment of the Tenth Circuit is affirmed.

It is so ordered.
18 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix A to opinion of the Court

APPENDIXES TO OPINION OF THE COURT

A
We set out the relevant statutory provisions and accom
panying regulations in full. The reader will note that in
the text of our opinion, for purposes of exposition, we use
the term “local school districts” where the statute refers to
“local educational agencies.” We also disregard the stat
ute’s frequent references to local “revenues” because those
references do not raise any additional considerations
germane to this case.

Impact Aid Program, 20 U. S. C. §7709 (2000 ed. and
Supp. IV) (State consideration of payments in providing
state aid):
“(a) General prohibition
“Except as provided in subsection (b) of this section,
a State may not—
“(1) consider payments under this subchapter in
determining for any fiscal year—
“(A) the eligibility of a local educational
agency for State aid for free public education;
or
“(B) the amount of such aid; or
“(2) make such aid available to local educational
agencies in a manner that results in less State
aid to any local educational agency that is eligible
for such payment than such agency would receive
if such agency were not so eligible.
“(b) State equalization plans
“(1) In general
“A State may reduce State aid to a local educa
 Cite as: 550 U. S. ____ (2007) 19

Appendix A to opinion of the Court

tional agency that receives a payment under sec
tion 7702 or 7703(b) of this title (except the
amount calculated in excess of 1.0 under section
7703(a)(2)(B) of this title and, with respect to a
local educational agency that receives a payment
under section 7703(b)(2) of this title, the amount
in excess of the amount that the agency would re
ceive if the agency were deemed to be an agency
eligible to receive a payment under section
7703(b)(1) of this title and not section 7703(b)(2)
of this title) for any fiscal year if the Secretary de
termines, and certifies under subsection (c)(3)(A)
of this section, that the State has in effect a pro
gram of State aid that equalizes expenditures for
free public education among local educational
agencies in the State.
“(2) Computation
“(A) In general
“For purposes of paragraph (1), a program
of State aid equalizes expenditures among lo
cal educational agencies if, in the second fiscal
year preceding the fiscal year for which the
determination is made, the amount of per-
pupil expenditures made by, or per-pupil
revenues available to, the local educational
agency in the State with the highest such per-
pupil expenditures or revenues did not exceed
the amount of such per-pupil expenditures
made by, or per-pupil revenues available to,
the local educational agency in the State with
the lowest such expenditures or revenues by
more than 25 percent.
“(B) Other factors
In making a determination under this subsec-
20 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix B to opinion of the Court

tion, the Secretary shall—
“(i) disregard local educational agencies
with per-pupil expenditures or revenues
above the 95th percentile or below the 5th
percentile of such expenditures or reve
nues in the State; and
“(ii) take into account the extent to which
a program of State aid reflects the ad
ditional cost of providing free public edu
cation in particular types of local educa
tional agencies, such as those that are
geographically isolated, or to particular
types of students, such as children with
disabilities.”
B
34 CFR §222.162 (2006) (What disparity standard must a
State meet in order to be certified and how are disparities
in current expenditures or revenues per pupil measured?):
“(a) Percentage disparity limitation. The Secretary
considers that a State aid program equalizes expendi
tures if the disparity in the amount of current expen
ditures or revenues per pupil for free public education
among LEAs in the State is no more than 25 percent.
In determining the disparity percentage, the Secre
tary disregards LEAs with per pupil expenditures or
revenues above the 95th or below the 5th percentile of
those expenditures or revenues in the State. The
method for calculating the percentage of disparity in a
State is in the appendix to this subpart.
“(b)(1) Weighted average disparity for different
grade level groups. If a State requests it, the Secre
tary will make separate disparity computations for
different groups of LEAs in the State that have simi
lar grade levels of instruction.
 Cite as: 550 U. S. ____ (2007) 21

Appendix B to opinion of the Court

“(2) In those cases, the weighted average disparity
for all groups, based on the proportionate number of
pupils in each group, may not be more than the per
centage provided in paragraph (a) of this section. The
method for calculating the weighted average disparity
percentage is set out in the appendix to this subpart.
“(c) Per pupil figure computations. In calculating
the current expenditures or revenue disparities under
this section, computations of per pupil figures are
made on one of the following bases:
“(1) The per pupil amount of current expenditures
or revenue for an LEA is computed on the basis of the
total number of pupils receiving free public education
in the schools of the agency. The total number of pu
pils is determined in accordance with whatever stan
dard measurement of pupil count is used in the
State.”

34 CFR pt. 222, subpt. K, App. (2006) (Methods of Calcula
tions for Treatment of Impact Aid Payments Under State
Equalization Programs):
“The following paragraphs describe the methods for
making certain calculations in conjunction with de
terminations made under the regulations in this sub
part. Except as otherwise provided in the regulations,
these methods are the only methods that may be used
in making these calculations.
“1. Determinations of disparity standard compli
ance under § 222.162(b)(1).
“(a) The determinations of disparity in current ex
penditures or revenue per pupil are made by—
“(i) Ranking all LEAs having similar grade levels
within the State on the basis of current expenditures
or revenue per pupil for the second preceding fiscal
22 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

Appendix B to opinion of the Court

year before the year of determination;
“(ii) Identifying those LEAs in each ranking that
fall at the 95th and 5th percentiles of the total num
ber of pupils in attendance in the schools of those
LEAs; and
“(iii) Subtracting the lower current expenditure or
revenue per pupil figure from the higher for those
agencies identified in paragraph (ii) and dividing the
difference by the lower figure.
. . . . .
“(b) In cases under §222.162(b), where separate
computations are made for different groups of LEAs,
the disparity percentage for each group is obtained in
the manner described in paragraph (a) above. Then
the weighted average disparity percentage for the
State as a whole is determined by—
“(i) Multiplying the disparity percentage for each
group by the total number of pupils receiving free
public education in the schools in that group;
“(ii) Summing the figures obtained in paragraph
(b)(i); and
“(iii) Dividing the sum obtained in paragraph (b)(ii)
by the total number of pupils for all the groups.

EXAMPLE

Group 1 (grades 1–6), 80,000 pupils x 18% = 14,400
Group 2 (grades 7–12), 100,000 pupils x 22% = 22,000
Group 3 (grades 1–12), 20,000 pupils x 35% = 7,000

Total 200,000 pupils ....................................... 43,400
43,400/200,000=21.70% Disparity
”
 Cite as: 550 U. S. ____ (2007) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1508
_________________

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

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE STEVENS, concurring.
In his oft-cited opinion for the Court in Griffin v. Oce
anic Contractors, Inc., 458 U. S. 564, 571 (1982), then-
Justice Rehnquist wisely acknowledged that “in rare cases
the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters,
and those intentions must be controlling.” And in United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 242
(1989), the Court began its analysis of the question of
statutory construction by restating the proposition that
“[i]n such cases, the intention of the drafters, rather than
the strict language, controls.” JUSTICE SCALIA provided
the decisive fifth vote for the majority in that case.
Today he correctly observes that a judicial decision that
departs from statutory text may represent “policy-driven
interpretation.” Post, at 3 (dissenting opinion). As long as
that driving policy is faithful to the intent of Congress (or,
as in this case, aims only to give effect to such intent)—
which it must be if it is to override a strict interpretation
of the text—the decision is also a correct performance of
the judicial function. JUSTICE SCALIA’s argument today
rests on the incorrect premise that every policy-driven
interpretation implements a judge’s personal view of
sound policy, rather than a faithful attempt to carry out
2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

STEVENS, J., concurring

the will of the legislature. Quite the contrary is true of the
work of the judges with whom I have worked for many
years. If we presume that our judges are intellectually
honest—as I do—there is no reason to fear “policy-driven
interpretation[s]” of Acts of Congress.
In Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 842 (1984), we acknowledged
that when “the intent of Congress is clear [from the statu
tory text], that is the end of the matter.” But we also
made quite clear that “administrative constructions which
are contrary to clear congressional intent” must be re
jected. Id., at 843, n. 9. In that unanimous opinion, we
explained:
“If a court, employing traditional tools of statutory
construction, ascertains that Congress had an inten
tion on the precise question at issue, that intention is
the law and must be given effect.” Ibid.
Analysis of legislative history is, of course, a traditional
tool of statutory construction.1 There is no reason why we
must confine ourselves to, or begin our analysis with, the
statutory text if other tools of statutory construction pro
vide better evidence of congressional intent with respect to
the precise point at issue.
As the Court’s opinion demonstrates, this is a quintes
sential example of a case in which the statutory text was
obviously enacted to adopt the rule that the Secretary
administered both before and after the enactment of the
rather confusing language found in 20 U. S. C.
§7709(b)(2)(B)(i). See ante, at 7–8. That text is suffi
ciently ambiguous to justify the Court’s exegesis, but my
own vote is the product of a more direct route to the
Court’s patently correct conclusion. This happens to be a
——————
1 See, e.g., Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 610,

n. 4 (1991); Steelworkers v. Weber, 443 U. S. 193, 230–253 (1979)
(Rehnquist, J., dissenting).
 Cite as: 550 U. S. ____ (2007) 3

STEVENS, J., concurring

case in which the legislative history is pellucidly clear and
the statutory text is difficult to fathom.2 Moreover, it is a
case in which I cannot imagine anyone accusing any
Member of the Court of voting one way or the other be
cause of that Justice’s own policy preferences.
Given the clarity of the evidence of Congress’ “intention
on the precise question at issue,” I would affirm the judg
ment of the Court of Appeals even if I thought that peti
tioners’ literal reading of the statutory text was correct.3
The only “policy” by which I have been driven is that
which this Court has endorsed on repeated occasions
regarding the importance of remaining faithful to Con
gress’ intent.

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

gress that voted “without comment or clarification,” ante, at 8 (majority
opinion), to adopt the 1994 statutory language relied on the endorse
ment of its sponsors, who introduced the legislation “on behalf of the
administration,” see 139 Cong. Rec. 23416 (1993) (remarks of Sen.
Kennedy) and id., at 23514 (remarks of Sen. Jeffords), and the fact that
such language was drafted and proposed by the U. S. Department of
Education, rather than a parsing of its obscure statutory text.
Moreover, I assume that, regardless of the statutory language’s sup
posed clarity, any competent counsel challenging the validity of a
presumptively valid federal regulation would examine the legislative
history of its authorizing statute before filing suit.
3 See Church of Holy Trinity v. United States, 143 U. S. 457, 459

(1892) (“It is a familiar rule, that a thing may be within the letter of the
statute and yet not within the statute, because not within its spirit, nor
within the intention of its makers”).
 Cite as: 550 U. S. ____ (2007) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1508
_________________

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

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE KENNEDY, with whom JUSTICE ALITO joins,
concurring.
The district courts and courts of appeals, as well as this
Court, should follow the framework set forth in Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837 (1984), even when departure from that
framework might serve purposes of exposition. When
considering an administrative agency’s interpretation of a
statute, a court first determines “whether Congress has
directly spoken to the precise question at issue.” Id., at
842. If so, “that is the end of the matter.” Ibid. Only if
“Congress has not directly addressed the precise question
at issue” should a court consider “whether the agency’s
answer is based on a permissible construction of the stat
ute.” Id., at 843.
In this case, the Court is correct to find that the plain
language of the statute is ambiguous. It is proper, there
fore, to invoke Chevron’s rule of deference. The opinion of
the Court, however, inverts Chevron’s logical progression.
Were the inversion to become systemic, it would create the
impression that agency policy concerns, rather than the
traditional tools of statutory construction, are shaping the
judicial interpretation of statutes. It is our obligation to
set a good example; and so, in my view, it would have been
2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

KENNEDY, J., concurring

preferable, and more faithful to Chevron, to arrange the
opinion differently. Still, we must give deference to the
author of an opinion in matters of exposition; and because
the point does not affect the outcome, I join the Court’s
opinion.
 Cite as: 550 U. S. ____ (2007) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1508
_________________

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

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, and with whom JUSTICE SOUTER
joins as to Part I, dissenting.
In Church of the Holy Trinity v. United States, 143 U. S.
457 (1892), this Court conceded that a church’s act of
contracting with a prospective rector fell within the plain
meaning of a federal labor statute, but nevertheless did
not apply the statute to the church: “It is a familiar rule,”
the Court pronounced, “that a thing may be within the
letter of the statute and yet not within the statute, be
cause not within its spirit, nor within the intention of its
makers.” Id., at 459. That is a judge-empowering proposi
tion if there ever was one, and in the century since, the
Court has wisely retreated from it, in words if not always
in actions. But today Church of the Holy Trinity arises,
Phoenix-like, from the ashes. The Court’s contrary asser
tions aside, today’s decision is nothing other than the
elevation of judge-supposed legislative intent over clear
statutory text. The plain language of the federal Impact
Aid statute clearly and unambiguously forecloses the
Secretary of Education’s preferred methodology for deter
mining whether a State’s school-funding system is equal
ized. Her selection of that methodology is therefore enti
tled to zero deference under Chevron U. S. A. Inc. v.
2 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

Natural Resources Defense Council, Inc., 467 U. S. 837
(1984).
I
The very structure of the Court’s opinion provides an
obvious clue as to what is afoot. The opinion purports to
place a premium on the plain text of the Impact Aid stat
ute, ante, at 11, but it first takes us instead on a round
about tour of “[c]onsiderations other than language,” ante,
at 7 (emphasis added)—page after page of unenacted
congressional intent and judicially perceived statutory
purpose, Part II–A, ante. Only after we are shown “why
Zuni concentrates its argument upon language alone,”
ante, at 7 (impliedly a shameful practice, or at least indi
cation of a feeble case), are we informed how the statute’s
plain text does not unambiguously preclude the interpre
tation the Court thinks best. Part II–B, ante (beginning
“But what of the provision’s literal language? The matter
is important . . . ”). This is a most suspicious order of
proceeding, since our case law is full of statements such as
“We begin, as always, with the language of the statute,”
Duncan v. Walker, 533 U. S. 167, 172 (2001), and replete
with the affirmation that, when “[g]iven [a] straightfor
ward statutory command, there is no reason to resort to
legislative history,” United States v. Gonzales, 520 U. S. 1,
6 (1997). Nor is this cart-before-the-horse approach justi
fied by the Court’s excuse that the statute before us is,
after all, a technical one, ante, at 7. This Court, charged
with interpreting, among other things, the Internal Reve
nue Code, the Employee Retirement Income Security Act
of 1974, and the Clean Air Act, confronts technical lan
guage all the time, but we never see fit to pronounce upon
what we think Congress meant a statute to say, and what
we think sound policy would counsel it to say, before con
sidering what it does say. As almost a majority of today’s
majority worries, “[w]ere the inversion [of inquiry] to
 Cite as: 550 U. S. ____ (2007) 3

SCALIA, J., dissenting

become systemic, it would create the impression that
agency policy concerns, rather than the traditional tools of
statutory construction, are shaping the judicial interpreta
tion of statutes.” Ante, at 1 (KENNEDY, J., joined by ALITO,
J., concurring). True enough—except I see no reason to
wait for the distortion to become systemic before conclud
ing that that is precisely what is happening in the present
case. For some, policy-driven interpretation is apparently
just fine. See ante, at 1–2 (STEVENS, J., concurring). But
for everyone else, let us return to Statutory Interpretation
101.
We must begin, as we always do, with the text. See, e.g.,
Gonzales, supra, at 4. Under the federal Impact Aid pro
gram, 20 U. S. C. §7701 et seq. (2000 ed. and Supp. IV),
States distributing state aid to local school districts (re
ferred to in the statute as “local educational agencies,” or
“LEAs”1) may not take into account the amount of federal
Impact Aid that its LEAs receive. See §7709(a). But the
statute makes an exception if the Secretary of Education
certifies that a State “has in effect a program of State aid
that equalizes expenditures for free public education
among local educational agencies in the State.”
§7709(b)(1) (2000 ed., Supp. IV). Congress has specified a
formula for the Secretary to use when making this equali
zation determination:
“[A] program of State aid equalizes expenditures
among local educational agencies if . . . the amount of
per-pupil expenditures made by, or per-pupil revenues
available to, the local educational agency in the State
with the highest such per-pupil expenditures or reve
nues did not exceed the amount of such per-pupil ex
——————
1 The Court’s opinion has replaced the phrase “ ‘local educational
agencies’ ” with “ ‘local school districts.’ ” See ante, at 19. While I have
no objection to that terminology, I will instead use “local educational
agencies” and “LEAs.”
4 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

penditures made by, or per-pupil revenues available
to, the local educational agency in the State with the
lowest such expenditures or revenues by more than 25
percent.” §7709(b)(2)(A).
The Secretary is further instructed, however, that when
making this determination, she shall “disregard local
educational agencies with per-pupil expenditures or reve
nues above the 95th percentile or below the 5th percentile
of such expenditures or revenues in the State.”
§7709(b)(2)(B)(i). It is this latter subsection which con
cerns us here.
The casual observer will notice that the Secretary’s
implementing regulations do not look much like the stat
ute. The regulations first require the Secretary to rank all
of the LEAs in a State (New Mexico has 89) according to
their per-pupil expenditures or revenues. 34 CFR pt. 222,
subpt. K, App. ¶(1)(a)(i) (2006). So far so good. But criti
cally here, the Secretary must then “[i]dentif[y] those
LEAs . . . that fall at the 95th and 5th percentiles of the
total number of pupils in attendance in the schools of those
LEAs.” Id., ¶(1)(a)(ii) (emphasis added). Finally, the
Secretary compares the per-pupil figures of those two
LEAs for the purpose of assessing whether a State exceeds
the 25% disparity measure. Id., ¶(1)(a)(iii). The majority
concludes that this method of calculation, with its focus on
student population, is a permissible interpretation of the
statute.
It most assuredly is not. To understand why, one first
must look beyond the smokescreen that the Court lays
down with its repeated apologies for inexperience in sta
tistics, and its endless recitation of technical mathematical
definitions of the word “percentile.” See, e.g., ante, at 12–
13 (“ ‘The n-th percentile is the value xn/100 such that n per
cent of the population is less than or equal to xn/100.’ ” (quot
ing C. Clapham & J. Nicholson, The Concise Oxford Dic
 Cite as: 550 U. S. ____ (2007) 5

SCALIA, J., dissenting

tionary of Mathematics 378 (3d ed. 2005))). This case is
not a scary math problem; it is a straightforward matter of
statutory interpretation. And we do not need the Court’s
hypothetical cadre of number-crunching amici, ante, at 17,
to guide our way.
There is no dispute that for purposes relevant here
“ ‘percentile’ refers to a division of a distribution of some
population into 100 parts.’ ” Ante, at 12. And there is
further no dispute that the statute concerns the percentile
of “per-pupil expenditures or revenues,” for that is what
the word “such” refers to. See 20 U. S. C. §7709(b)(2)(B)(i)
(Secretary shall “disregard local educational agencies with
per-pupil expenditures or revenues above the 95th percen
tile or below the 5th percentile of such expenditures or
revenues in the State” (emphasis added)). The question is:
Whose per-pupil expenditures or revenues? Or, in the
Court’s terminology, what “population” is assigned the
“characteristic” “per-pupil expenditure or revenue”? Ante,
at 13. At first blush, second blush, or twenty-second
blush, the answer is abundantly clear: local educational
agencies. The statute requires the Secretary to “disregard
local educational agencies with” certain per-pupil figures
above or below specified percentiles of those per-pupil
figures. §7709(b)(2)(B)(i). The attribute “per-pupil expen
ditur[e] or revenu[e]” is assigned to LEAs—there is no
mention of student population whatsoever. And thus
under the statute, “per-pupil expenditures or revenues”
are to be arrayed using a population consisting of LEAs, so
that percentiles are determined from a list of (in New
Mexico) 89 per-pupil expenditures or revenues represent
ing the 89 LEAs in the State. It is just that simple.
The Court makes little effort to defend the regulations
as they are written. Instead, relying on a made-for
litigation theory that bears almost no relationship to the
regulations themselves, the Court believes it has found a
way to shoehorn those regulations into the statute. The
6 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

Impact Aid statute is ambiguous, the Court says, because
it “does not specify precisely what population is to be
‘distributed’ (i.e., ranked according to the population’s
corresponding values for the relevant characteristic).”
Ante, at 13. Thus the Court finds that it is permissible for
the Secretary to attribute the characteristic “per-pupil
expenditure or revenue” to pupils, with the result that the
Secretary may “us[e] . . . the State’s students as the rele
vant population for calculating the specified percentiles.”
Ante, at 14. Under that interpretation, as the State man
ages to explain with a straight face, “[i]n New Mexico,
during the time at issue, there were approximately
317,777 pupils in the [S]tate and thus there were 317,777
per-pupil revenues in the [S]tate.” Brief for Respondent
New Mexico Public Education Department 37; see also id.,
at 36 (“Each and every student in an LEA and in a [S]tate
may be treated as having his or her own ‘per-pupil’ expen
diture or revenue amount”). The Court consequently
concludes that “linguistically speaking, one may attribute
the characteristic of per-pupil expenditure to each [stu
dent].” Ante, at 15.
The sheer applesauce of this statutory interpretation
should be obvious. It is of course true that every student
in New Mexico causes an expenditure or produces a reve
nue that his LEA either enjoys (in the case of revenues) or
is responsible for (in the case of expenditures). But it
simply defies any semblance of normal English usage to
say that every pupil has a “per-pupil expenditure or reve
nue.” The word “per” connotes that the expenditure or
revenue is a single average figure assigned to a unit the
composite members of which are individual pupils. And
the only such unit mentioned in the statute is the local
educational agency.2 See 20 U. S. C. §7709(b)(2)(B)(i). It
——————
2 The Court maintains that the phrase “per-pupil expenditures or

revenues” may also be attributed to schools or grade levels. Ante, at 14.
 Cite as: 550 U. S. ____ (2007) 7

SCALIA, J., dissenting

is simply irrelevant that “[n]o dictionary definition . . .
suggests that there is any single logical, mathematical, or
statistical link between [per-pupil expenditures or reve
nues] and . . . the nature of the relevant population.” Ante,
at 13–14. Of course there is not. It is the text at issue
which must identify the relevant population, and it does so
here quite unambiguously: “local educational agencies
with per-pupil expenditures or revenues.”
§7709(b)(2)(B)(i) (emphasis added). That same phrase
shows the utter irrelevance of the Court’s excursus upon
the meaning of the word “per.” See ante, at 15. It does
indeed mean “ ‘for each or ‘for every’ ”—and when it is
contained in a clause that reads “local educational agen
cies with per-pupil expenditures or revenues” it refers to
(and can only refer to) the average expenditure or revenue
“for each” or “for every” student out of the total expendi
tures or revenues of the LEA.
The violence done to this statute would be severe
enough if the Secretary used the actual expenditure or
revenue for each individual pupil. But in fact the Secre
tary determines the per-pupil expenditure or revenue for
each individual student by (guess what) computing the
per-pupil expenditure or revenue of each LEA! As the New
Mexico brief explains:
“[A] per-pupil expenditure or revenue is an average
number. It is not the amount actually spent on any
given pupil, an amount which would be impossible to
calculate in any meaningful way. It is roughly the to
tal amount expended by an LEA divided by the num
——————
Standing alone and abstracted from the rest of the statute, indeed it
may. But not when it appears in the phrase “local educational agencies
with per-pupil expenditures or revenues.” (Emphasis added.) In any
case, the fact that “per-pupil expenditures or revenues” could be ap
plied to composite entities other than LEAs does not establish that
speaking of the “per-pupil expenditure or revenue” of an individual
student makes any sense (it does not).
8 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

ber of pupils in that LEA.” Brief for Respondent New
Mexico Public Education Department 36.
The Secretary thus assigns an artificial number to each
student that corresponds exactly to his LEA’s per-pupil
expenditure or revenue. In other words, at the end of the
day the Secretary herself acknowledges that “per-pupil
expenditures or revenues” pertains to LEAs, and not
students. And she is interpreting “per-pupil expenditure
or revenue” not as the Court suggests (an amount attrib
utable to each student), but rather as I suggest (an aver
age amount for the pupils in a particular LEA). But she
then proceeds to take a step not at all permitted by the
statutory formula—in effect applying “per-pupil expendi
ture or revenue” a second time (this time according to the
Court’s fanciful interpretation of “per-pupil”) in order to
reach the result she desires. Of course, if the Secretary
did apply the “per-pupil expenditure or revenue” only
once, arraying students by their actual expenditures or
revenues, her entire system would collapse. Students
from the same LEA, rather than appearing on the list with
the same per-pupil figure, would be located at various
points on the spectrum. And so long as an LEA had at
least one student above the 95th or below the 5th percen
tile of pupil “per-pupil expenditures or revenues,” that
LEA would have to be excluded from the disparity analy
sis. The result would be a serious distortion of the dispar
ity determination, excluding many more LEAs (in fact,
perhaps all of them) from the disparity calculation. This
would render the 25% disparity measure in §7709(b)(2)(A)
all but meaningless.
The Court makes one final attempt to rescue the Secre
tary’s interpretation, appealing to “statutory context.”
“Context here tells us,” it says, “that the instruction to
identify school districts with ‘per-pupil expenditures’
above the 95th percentile ‘of such expenditures’ is . . .
 Cite as: 550 U. S. ____ (2007) 9

SCALIA, J., dissenting

ambiguous, because both students and school districts are
of concern to the statute.” Ante, at 17. This is a complete
non sequitur. Of course students are a concern to a stat
ute dealing with school funding. But that does not create
any ambiguity with respect to whether, under this statute,
pupils can reasonably be said to have their own “per-pupil
expenditures or revenues.” It is simply irrational to say
that the clear dispositions of a statute with regard to the
entities that it regulates (here LEAs) are rendered am
biguous when those entities contain sub-units that are the
ultimate beneficiaries of the regulation (here students).
Such a principle of interpretation—if it could be called
that—would inject ambiguity into many statutes indeed.
The Court’s reliance on statutory context is all the more
puzzling since the context obviously favors petitioners.
“The focus [of the Impact Aid statute] is upon LEAs, not
upon the number of pupils.” 393 F. 3d 1158, 1172 (CA10
2004) (O’Brien, J., dissenting), opinion vacated, 437 F. 3d
1289, 1290 (2006) (en banc) (per curiam). In fact, the
provisions at issue here make not the slightest mention of
students. That is both sensible and predictable, since the
Impact Aid program’s equalization formula is designed to
address funding disparities between LEAs, not between
students. See 20 U. S. C. §7709(b)(2)(A) (referring to “a
program of State aid [that] equalizes expenditures among
local educational agencies”); see also §7709(d)(1). Indeed,
the whole point of the equalization determination is to
figure out whether States may reduce state aid to LEAs.
See §7709(a).
In sum, the plain language of the Impact Aid statute
compels the conclusion that the Secretary’s method of
calculation is ultra vires. Employing the formula that the
statute requires, New Mexico is not equalized. Ante, at 6.
II
How then, if the text is so clear, are respondents manag
10 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

ing to win this case? The answer can only be the return of
that miraculous redeemer of lost causes, Church of the
Holy Trinity. In order to contort the statute’s language
beyond recognition, the Court must believe Congress’s
intent so crystalline, the spirit of its legislation so glow
ingly bright, that the statutory text should simply not be
read to say what it says. See Part II–A, ante. JUSTICE
STEVENS is quite candid on the point: He is willing to
contradict the text. See ante, at 2–3 (concurring opinion).3
But JUSTICE STEVENS’ candor should not make his phi
losophy seem unassuming. He maintains that it is “a
correct performance of the judicial function” to “override a
strict interpretation of the text” so long as policy-driven
interpretation “is faithful to the intent of Congress.” Ante,
at 1. But once one departs from “strict interpretation of
the text” (by which JUSTICE STEVENS means the actual
meaning of the text) fidelity to the intent of Congress is a
chancy thing. The only thing we know for certain both
Houses of Congress (and the President, if he signed the
legislation) agreed upon is the text. Legislative history
can never produce a “pellucidly clear” picture, ante, at 3
(STEVENS, J., concurring), of what a law was “intended” to
mean, for the simple reason that it is never voted upon—
or ordinarily even seen or heard—by the “intending” law-
giving entity, which consists of both Houses of Congress
——————
3 Like JUSTICE STEVENS, respondents themselves were aboveboard

when they litigated this case at the administrative level. After hearing
argument from the Department of Education, the Administrative Law
Judge (ALJ) protested: “The problem is I don’t see the ambiguity of the
statute.” App. 29. To this the Department’s counsel responded: “The
only way I can do that is by reference to the statutory purpose.” Ibid.
Later in the hearing, the ALJ similarly asked the State of New Mexico
how its interpretation was consistent with the statute. The State
answered: “Literally, on the face of the words, perhaps not, probably
not.” Id., at 53. Despite his misgivings, the ALJ ultimately decided
that he did not possess the authority to invalidate the regulations.
App. to Pet. for Cert. 38a, 51a.
 Cite as: 550 U. S. ____ (2007) 11

SCALIA, J., dissenting

and the President (if he did not veto the bill). See U. S.
Const., Art. I, §§1, 7. Thus, what judges believe Congress
“meant” (apart from the text) has a disturbing but entirely
unsurprising tendency to be whatever judges think Con
gress must have meant, i.e., should have meant. In
Church of the Holy Trinity, every Justice on this Court
disregarded the plain language of a statute that forbade
the hiring of a clergyman from abroad because, after all
(they thought), “this is a Christian nation,” 143 U. S., at
471, so Congress could not have meant what it said. Is
there any reason to believe that those Justices were lack
ing that “intellectua[l] honest[y]” that JUSTICE STEVENS
“presume[s]” all our judges possess, ante, at 2? Intellec
tual honesty does not exclude a blinding intellectual bias.
And even if it did, the system of judicial amendatory veto
over texts duly adopted by Congress bears no resemblance
to the system of lawmaking set forth in our Constitution.
JUSTICE STEVENS takes comfort in the fact that this is a
case in which he “cannot imagine anyone accusing any
Member of the Court of voting one way or the other be
cause of that Justice’s own policy preferences.” Ante, at 3.
I can readily imagine it, given that the Court’s opinion
begins with a lengthy description of why the system its
judgment approves is the better one. But even assuming
that, in this rare case, the Justices’ departure from the
enacted law has nothing to do with their policy view that
it is a bad law, nothing in JUSTICE STEVENS’ separate
opinion limits his approach to such rarities. Why should
we suppose that in matters more likely to arouse the
judicial libido—voting rights, antidiscrimination laws, or
environmental protection, to name only a few—a judge in
the School of Textual Subversion would not find it conven
ient (yea, righteous!) to assume that Congress must have
meant, not what it said, but what he knows to be best?
Lest there be any confusion on the point, I must discuss
briefly the two cases JUSTICE STEVENS puts forward, ante,
12 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

at 1, as demonstrating this Court’s recent endorsement of
his unorthodox views. They demonstrate just the oppo
site. Griffin v. Oceanic Contractors, Inc., 458 U. S. 564
(1982), involved a maritime statute that required the
master of a vessel to furnish unpaid wages to a seaman
within a specified period after the seaman’s discharge, and
further provided that a master who failed to do so without
sufficient cause “ ‘shall pay to the seaman a sum equal to
two days’ pay for each and every day during which pay
ment is delayed.’ ” Id., at 570 (quoting 46 U. S. C. §596
(1976 ed.)). We explained that “Congress intended the
statute to mean exactly what its plain language says,” 458
U. S., at 574, and held that the seaman was entitled to
double wages for every day during which payment was
delayed, even for the period in which he had obtained
alternative employment. The result was that the seaman
would receive approximately $300,000 for his master’s
improper withholding of $412.50, id., at 575, even though
“[i]t [was] probably true that Congress did not precisely
envision the grossness of the difference . . . between the
actual wages withheld and the amount of the award re
quired by the statute,” id., at 576. We suggested in dicta
that there might be a “rare cas[e]” in which the Court
could relax its steadfastness to statutory text, id., at 571,
but if Griffin itself did not qualify, it is hard to imagine
what would. The principle JUSTICE STEVENS would as
cribe to Griffin is in fact the one he advocated in dissent.
“[T]his is one of the cases in which the exercise of judg
ment dictates a departure from the literal text in order to
be faithful to the legislative will.” Id., at 586 (STEVENS, J.,
dissenting).
The second case JUSTICE STEVENS relies upon, United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989),
is equally inapt. The Court’s opinion there (unlike the one
here) explained that our analysis “must begin . . . with the
language of the statute itself,” and concluded that that
 Cite as: 550 U. S. ____ (2007) 13

SCALIA, J., dissenting

was “also where the inquiry should end, for where . . . the
statute’s language is plain, ‘the sole function of the courts
is to enforce it according to its terms.’ ” Id., at 241 (quot
ing Caminetti v. United States, 242 U. S. 470, 485 (1917)).
My “fifth vote” in Ron Pair was thus only “decisive,” ante,
at 1 (STEVENS, J., concurring), in reaffirming this Court’s
adherence to statutory text, decisively preventing it from
falling off the precipice it plunges over today.
Contrary to the Court and JUSTICE STEVENS, I do not
believe that what we are sure the Legislature meant to say
can trump what it did say. Citizens arrange their affairs
not on the basis of their legislators’ unexpressed intent,
but on the basis of the law as it is written and promul
gated. I think it terribly unfair to expect that the two
rural school districts who are petitioners here should have
pored over some 30 years of regulatory history to divine
Congress’s “real” objective (and with it the “real” intent
that a majority of Justices would find honest and true). To
be governed by legislated text rather than legislators’
intentions is what it means to be “a Government of laws,
not of men.” And in the last analysis the opposite ap
proach is no more beneficial to the governors than it is to
the governed. By “depriving legislators of the assurance
that ordinary terms, used in an ordinary context, will be
given a predictable meaning,” we deprive Congress of “a
sure means by which it may work the people’s will.” Chi
som v. Roemer, 501 U. S. 380, 417 (1991) (SCALIA, J.,
dissenting).
I do not purport to know what Congress thought it was
doing when it amended the Impact Aid program in 1994.
But even indulging JUSTICE STEVENS’ erroneous premise
that there exists a “legislative intent” separate and apart
from the statutory text, ante, at 1 (concurring opinion), I
do not see how the Court can possibly say, with any meas
ure of confidence, that Congress wished one thing rather
than another. There is ample evidence, for example, that
14 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

at the time it amended the Impact Aid statute, Congress
knew exactly how to incorporate student population into a
disparity calculation. Most prominently, in the very same
Act that added §7709(b)(2)(B)(i) to the Impact Aid pro
gram, Congress established the Education Finance Incen
tive Program, known as EFIG. See Improving America’s
Schools Act of 1994, 108 Stat. 3575. That statute allocates
grants to States based in part on an “equity factor” which
requires a disparity calculation similar to that in the
Impact Aid statute. See 20 U. S. C. §6337(b)(1)(A) (2000
ed., Supp. IV). In EFIG, however, Congress specifically
required the Secretary to take student population into
account: “[T]he Secretary shall weigh the variation be
tween per-pupil expenditures in each local educational
agency . . . according to the number of pupils served by the
local educational agency.” §6337(b)(3)(A)(ii)(II) (emphasis
added); see also Brief for Federal Respondent 28–29. And
there is more. In EFIG, Congress expressly provided that
a State would be accorded a favorable “equity factor”
rating if it was considered equalized under the Secretary’s
Impact Aid regulations. See §6337(b)(3)(B) (2000 ed.,
Supp. IV). Congress thus explicitly incorporated the
Impact Aid regulations into EFIG, but did no such thing
with respect to the Impact Aid statute itself. All this on
the very same day.
Nor do I see any significance in the fact that no legisla
tor in 1994 expressed the view that §7709(b)(2)(B)(i) was
designed to upend the Secretary’s equalization formula.
Ante, at 8 (majority opinion). It is quite plausible—indeed,
eminently plausible—that the Members of Congress took
the plain meaning of the language which the Secretary
himself had proposed to be what the Secretary himself had
previously been doing. It is bad enough for this Court to
consider legislative materials beyond the statutory text in
aid of resolving ambiguity, but it is truly unreasonable to
require such extratextual evidence as a precondition for
 Cite as: 550 U. S. ____ (2007) 15

SCALIA, J., dissenting

enforcing an unambiguous congressional mandate. See
Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 73–
74 (2004) (SCALIA, J., dissenting). The Court points to the
fact that “no Member of Congress has ever criticized the
method the [Secretary’s] regulation[s] sets forth.” Ante, at
8. But can it really be that this case turns, in the Court’s
view, on whether a freshman Congressman from New
Mexico gave a floor speech that only late-night C–SPAN
junkies would witness? The only fair inference from Con
gress’s silence is that Congress had nothing further to say,
its statutory text doing all of the talking.
Finally, the Court expresses its belief that Congress
must have intended to adopt the Secretary’s pre-1994
disparity test because that test is the more reasonable one,
better able to account for States with small numbers of
large LEAs, or large numbers of small ones. See ante, at
8–11. This, to tell the truth, is the core of the opinion. As
I have suggested, it is no accident that the countertextual
legislative intent judges perceive invariably accords with
what judges think best. It seems to me, however, that this
Court is no more capable of saying with certainty what is
best in this area than it is of saying with certainty (apart
from the text) what Congress intended. There is good
reason to be concerned—in the implementation of a stat
ute that makes a limited exception for States that have “in
effect a program of State aid that equalizes expenditures
for free public education among local educational agen
cies,” 20 U. S. C. §7709(b)(1) (2000 ed., Supp. IV) (empha
sis added)—that the Secretary’s methodology eliminates
from the disparity calculation too many LEAs. In the
certification at issue in this very case, the Secretary ex
cluded 23 of New Mexico’s 89 LEAs, approximately 26%.
Is this Court such an expert in school finance that it can
affirm the desirability of excluding one in four of New
Mexico’s LEAs from consideration?
As for the Secretary’s concerns about the discrepancy
16 ZUNI PUBLIC SCHOOL DIST. v. DEPARTMENT OF

EDUCATION

SCALIA, J., dissenting

between large and small LEAs, does the Court have any
basis for its apparent confidence that other parts of the
Impact Aid statute do not adequately address the prob
lem? Immediately after setting forth the 95th and 5th
percentile cutoffs, §7709(b)(2)(B)(i), the statute instructs
the Secretary to “take into account the extent to which a
program of State aid reflects the additional cost of provid
ing free public education in particular types of local educa
tional agencies, such as those that are geographically
isolated, or to particular types of students, such as chil
dren with disabilities.” §7709(b)(2)(B)(ii). Respondents do
not explain why the Secretary could not use
§7709(b)(2)(B)(ii) to temper any unintended effects of
§7709(b)(2)(B)(i). Respondents further maintain that
States could take advantage of the statute’s plain meaning
by subdividing their LEAs. But again, the statute itself
contains a remedy. Under §7713(9)(B)(ii), “[t]he term
‘local educational agency’ does not include any agency or
school authority that the Secretary determines on a case-
by-case basis . . . is not constituted or reconstituted for
legitimate educational purposes.”
* * *
The only sure indication of what Congress intended is
what Congress enacted; and even if there is a difference
between the two, the rule of law demands that the latter
prevail. This case will live with Church of the Holy Trinity
as an exemplar of judicial disregard of crystal-clear text.
We must interpret the law as Congress has written it, not
as we would wish it to be. I would reverse the judgment of
the Court of Appeals.
 Cite as: 550 U. S. ____ (2007) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1508
_________________

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

PETITIONERS v. DEPARTMENT OF EDUCA-

TION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 17, 2007]

JUSTICE SOUTER, dissenting.
I agree with the Court that Congress probably intended,
or at least understood, that the Secretary would continue
to follow the methodology devised prior to passage of the
current statute in 1994, see ante, at 7–8. But for reasons
set out in JUSTICE SCALIA’s dissent, I find the statutory
language unambiguous and inapt to authorize that meth
odology, and I therefore join Part I of his dissenting opin
ion.