Argument Recap: Zuni Public Sch. Dist. No. 89 v. U.S. Dept. of Educ. on 1/10

The following argument recap is by Adam Lawton, a student at Harvard Law School. His preview of the case can be found here.

Wednesday’s argument in Zuni Public School District No. 89 v. United States Department of Education, No. 05-1508, suggested that the Justices are likely to be divided over the question whether the federal Impact Aid statute is ambiguous and, therefore, the Department of Education (DOE) regulations implementing the Impact Aid program are entitled to Chevron deference.

Counsel for petitioners, Ronald VanAmberg, was questioned by Justice Ginsburg regarding the appropriate inference to draw from the fact that the statutory language at issue in 20 U.S.C. § 7709(b) was proposed by the DOE and closely tracked language in the DOE regulations that implemented the Impact Aid program before it was codified in legislation. Justice Scalia continued the line of questioning, intimating his belief that the origin of the statutory language was unhelpful because the regulations codified in § 7709(b) were promulgated by a different Secretary of Education, eighteen years before they were incorporated into legislation.

The questioning next moved to whether the language of § 7709(b) was ambiguous. Justice Breyer asked Mr. VanAmberg what was supposed to be distributed for purposes of determining the 5th-percentile and 95th-percentile cutoffs, remarking at one point that he had “no idea what this statute means” and had “never seen a case so much better fitted for relying on the views of an agency.” Chief Justice Roberts and Justice Scalia, however, suggested that the text of the statute created no ambiguity at all.

The last portion of Mr. VanAmberg’s argument focused on whether petitioners’ proposed reading of the statute would produce an absurd result. Questioning from Justices Ginsburg and Breyer suggested that the statute should be read to benefit students and that reading it to benefit school districts as such would be contrary to the statute’s purpose. Justice Scalia, however, suggested that correcting district-to-district disparities in funding was precisely the purpose of the statute.

Arguing for the U.S. Department of Education, Mr. Srinivasan got no further than “may it please the Court” before Justice Scalia and the Chief Justice began questioning the textual plausibility of the government’s proposed interpretation of § 7709(b). The argument continued with a discussion of another DOE-administered program — the Education Finance Incentive Grant (EFIG) program — that, like the Impact Aid program, was codified in the 1994 act but was previously administered according to DOE regulations. The EFIG statute incorporated the DOE regulations precisely, but the Impact Aid statute did not, and the Justices questioned whether it was appropriate to infer that the Impact Aid statutes’ failure to include the precise language of the existing regulations meant that the Congress intended to diverge from the DOE’s formula. Mr. Srinivasan responded that this inquiry was improper. The appropriate question for Chevron purposes, he said, was whether § 7709(b) was ambiguous, not whether Congress impliedly intended to reject one particular formula.

For the remainder of the argument, Mr. Srinivasan and the Justices returned to the statutory text. Questioning from Justices Stevens and Souter, in particular, discussed how the Court should resolve the issue if the DOE’s reading produced the better result but was inconsistent with the statute’s text. Mr. Srinivasan suggested a sliding scale rule, according to which — as long as the statute is not unambiguous — the Court should become more inclined to adopt a textually less plausible reading if the alternative reasoning leads to a more absurd result.

Arguing for the New Mexico Public Education Department, Mr. Manasevit began with a discussion of the 1994 act’s legislative history. Mr. Manasevit submitted that the DOE’s proposed language was deliberately ambiguous to preserve the DOE’s regulatory flexibility, but Justice Scalia suggested that the relevant inquiry was whether a member of Congress would perceive an ambiguity in the text, not whether the DOE intended for one to exist. From there, Mr. Manasevit turned to the statutory text, and questioning from Chief Justice Roberts and Justice Scalia again seemed to indicate that they were disinclined to find an ambiguity in the text of § 7709(b). Chief Justice Roberts, in particular, seemed displeased that respondents’ reading of § 7709(b) would result in a nonsensical measure of “per-pupil revenue for each pupil” rather than a more natural measure of per-pupil revenue for each school district. Justice Breyer indicated that he did not know how to tell whether a measure of per-pupil revenue for each pupil was a sensible reading of the statute.