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Today’s Opinion in Zuni Public School District v. Department of Education

It’s a decision that Justice Scalia, in his dissent, derides as “nothing other than the elevation of judge-supposed legislative intent over clear statutory text,” requiring him to provide a brief tutorial in “Statutory Interpretation 101.” Given the “colorful” (as Justice Breyer, writing for the majority, puts it mildly) language that the case inspired, one would expect the subject matter to be something weighty and controversial – abortion, perhaps, or the death penalty. Au contraire – at issue in Zuni Public School District v. Department of Education was the formula used by the Secretary of Education to determine whether a state may reduce its own funding to account for federal aid . . . a case that (in theory) only Chevron aficionados and statisticians could love. By a vote of five (Justices Breyer, Stevens, Ginsburg, Kennedy, and Alito) to four (Justice Scalia, the Chief, and Justices Thomas and Souter), the Supreme Court – with more than a few fireworks – today upheld the regulations used by the Secretary to make such a determination.

Let’s start with a bit of background (for more details, you can read Adam Lawton’s preview of the case here, and his summary of the argument here). The Federal Impact Aid Program provides funds to certain school districts. States are in turn prohibited from reducing their aid to those schools unless the Secretary of Education determines that state expenditures to the local school districts are “equalized,” which the statute defines as having a disparity of no more than twenty-five percent between the districts with the highest and lowest per-pupil expenditures. At issue in Zuni was the statute’s “disregard” instruction, which requires the Secretary to “disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State.” To calculate whether expenditures are indeed “equalized,” the Secretary (pursuant to regulations in effect for more than thirty years) ranks school districts according to per-pupil expenditures and then eliminates the school districts that account for five percent of the state’s student population at each end of the spectrum. Petitioner Zuni, by contrast, contends that the plain language of the statute requires the Secretary to rank the school districts in order of per-pupil expenditures, and then to “disregard” the top and bottom five percent of school districts based solely on the number of school districts.

Today a majority of the Court joined the Tenth Circuit and the Department of Education in rejecting Zuni’s proposed method. Acknowledging that Zuni’s “strongest argument rests upon the literal language of the statute,” Justice Breyer – in a move that would later cause Justice Scalia to heap scorn upon him – nonetheless explained that he would first turn to the statute’s “background and basic purpose” to “illuminate” the majority’s subsequent textual analysis. And looking beyond the text, he continued, revealed “unusually strong indications that Congress intended to leave the Secretary free to use the calculation method [at issue] and that the Secretary’s chosen method is a reasonable one.” For example, the regulation has been in effect for over thirty years, during which no member of Congress has ever criticized the formula; the Secretary himself drafted the statutory language itself; and the Secretary’s formula is more likely to address the significant funding disparities that Congress intended to eliminate.

But in any event, the majority opinion emphasizes, the Secretary’s formula “falls within the scope of the statute’s plain language.” The majority construes the statute as “limit[ing] the Secretary to calculation methods that involve ‘per-pupil expenditures’” – thus, the key issue (at least in the majority’s view) is what group (i.e., school districts or students) should be ranked to determine which districts fall within the middle ninety percent of per-pupil expenditures. [Note to the math-phobic: the majority opinion contains a lengthy exegesis, relying – among other sources – on The Concise Oxford Dictionary of Mathematics’ definition of what constitutes a “percentile.”] Because the statute does not specify what method the Secretary should use, “[t]he upshot is that the language of the statute is broad enough to permit the Secretary’s reading.” As such (and this is where things start to get a little circular), the Court must then look beyond the language of the statute – which it has already done – to determine whether the regulation is a reasonable construction of the statute.

In his concurring opinion, Justice Stevens pays homage to the basic principle of Chevron, but emphasizes that the Court in that case “also made quite clear that ‘administrative constructions which are contrary to clear congressional intent’ must be rejected.” Here, he explains, although “the statutory text is difficult to fathom,” “the legislative history is pellucidly clear” with regard to Congress’s intent. Responding to Justice Scalia’s accusations that the majority decision, by departing from statutory text, “may represent ‘policy-driven interpretation,’” he retorts first that “there is no reason to fear” such interpretations if one assumes that judges are intellectually honest; and, second, that “it is a case in which I cannot imagine anyone accusing any Member of the Court of voting one way or the other because of that Justice’s own policy preferences.” (The latter statement is presumably the polite, Justice-Stevens way of saying “who beyond the parties cares about the outcome of this case anyway?”)

In the second concurring opinion, Justice Kennedy (joined by Justice Alito) takes pains to emphasize that “it would have been preferable, and more faithful to Chevron, to arrange the opinion differently” – i.e., with the discussion of the statutory text first – so as to avoid “creat[ing] the impression that agency policy concerns . . . are shaping the judicial interpretation of statutes.” Here, he hastens to explain, the fact that the opinion begins with a discussion of the statutory history and purpose “does not affect the outcome.”

From the start of his dissent, Justice Scalia pulls no punches. He begins by complaining that, with the majority opinion, the Court’s 1892 opinion in Church of the Holy Trinity v. United States – in which, according to Justice Scalia, the Court held that “a thing may be within in the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers – “arises, Phoenix-like, from the ashes.” Decrying the majority’s “cart-before-the-horse approach,” he begins with the text of the statute. In his view, construing the statute is “not a scary math problem” (the math-phobic are now breathing a deep sigh of relief), but instead “a straightforward matter of statutory interpretation”: the statute requires the Secretary to create a list of school districts based on their per-pupil expenditures, and use that list to determine the top and bottom five percent to be disregarded. The majority’s contrary interpretation, which relies on student population, is – according to Justice Scalia – “sheer applesauce” (if you’re still reading, do you have any idea where that phrase comes from?): “it simply defies any semblance of normal English usage to say that every pupil has a ‘per-pupil expenditure or revenue,’” particularly when “the only . . . unit mentioned in the statute is the local educational agency.”

Having concluded that “the plain language of the Impact Aid statute compels the conclusion that the Secretary’s method of calculation is ultra vires,” Justice Scalia then devotes the next seven pages or so to, in essence, making fun of the majority opinion and Justice Stevens’s concurrence. (Two things of note: Justice Kennedy’s separate concurrence seems to escape Justice Scalia’s poison pen, and Justice Souter does not join this portion of the dissent.) Anyone keeping a list of Justice Scalia’s top 100 pithy phrases will want to be sure to print this one out, as it contains such instant classics as “that miraculous redeemer of lost causes, Church of the Holy Trinity,” the “judicial libido,” and – perhaps my personal favorite – the “School of Textual Subversion.” In the end, he thunders (and you can just feel the frustration coming off the printed page), “[t]he 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.”

Any remaining doubt that you might harbor regarding the very different personalities of Justices Scalia and Souter can now be erased as a result of Justice Souter’s terse, restrained-New-England-style dissent, which I will reproduce in its entirety:

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