In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2008

BOARD OF EDUCATION OF OTTAWA TOWNSHIP

HIGH SCHOOL DISTRICT 140, et al.,

Plaintiffs-Appellants,

v.

MARGARET SPELLINGS, Secretary of Education, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 05 C 655—David H. Coar, Judge.

____________

ARGUED JANUARY 15, 2008—DECIDED FEBRUARY 11, 2008

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Two school districts and

some parents believe that the No Child Left Behind Act,

20 U.S.C. §§ 6301–6578, conflicts with the Individuals

with Disabilities Education Act, 20 U.S.C. §§ 1401–82.

They asked the district court for a declaratory judgment

that the former’s requirements must yield to the latter’s.

The judge declined to reach the merits, however, ruling

instead that the plaintiffs lack standing because both

statutes establish voluntary programs, and the school
2 No. 07-2008

districts can solve any problem for themselves by turning

down the federal money and escaping the obligations.

2007 U.S. Dist. LEXIS 24057 (N.D. Ill. Mar. 31, 2007).

That won’t hold water, for several reasons. First, the

decision to participate in these programs is made at the

state rather than the local level. Second, several of the

plaintiffs are parents, who lack any option about participation. Third, both of the federal statutes require jurisdictions to opt in or out for a year or more at a time. A

school district may decline a subgrant from the state and

thus avoid most obligations under the No Child Left

Behind Act, see 20 U.S.C. §6311(b)(2)(A)(ii), but once a

district takes the proffered grant it must comply with all

of the program’s requirements and correspondingly is

entitled to object that a particular demand made in the

program’s name by the Secretary of Education and other

officials is not actually authorized by federal law. A

condition on a grant can cause concrete injury that establishes a “case or controversy” even if the condition could

have been avoided by turning down the money earlier. The

Supreme Court has addressed many disputes about the

validity of conditions attached to federal grants without

a single Justice suggesting that the Court was issuing

advisory opinions. See, e.g., United States v. American

Library Association, Inc., 539 U.S. 194 (2003); Wilder v.

Virginia Hospital Ass’n, 496 U.S. 498 (1990); South Dakota

v. Dole, 483 U.S. 203 (1987); King v. Smith, 392 U.S.

309 (1968). Cf. Gonzaga University v. Doe, 536 U.S. 273

(2002).

Perhaps, when writing that “redressable injuries do

not arise from voluntary choices”, the district court meant

that it would be possible for the school districts to comply with both statutes, and that the problems they may

encounter from preferring one to the other are of their

own making. A good deal of the district court’s opinion is

an elaboration on this theme. But that would be a deci-
No. 07-2008 3

sion on the merits, stemming from a conclusion that the

two federal statutes are compatible in the sense that

there is at least one way for school districts to satisfy

both. A conclusion that a litigant’s claim fails on the

merits does not justify holding that the suit is

nonjusticiable. Because the district court’s bottom line

is lack of standing, we read its opinion as not addressing

the merits.

The district court gave a second reason for its conclusion that plaintiffs lack standing: the school districts

have yet to suffer a concrete injury. The No Child Left

Behind Act demands that school districts ensure pupils’

“adequate yearly progress” (20 U.S.C. §6316) toward

educational objectives, as measured by standardized tests

that school districts must administer. The Individuals

with Disabilities Education Act requires schools to

adopt individual educational programs for pupils with

disabilities. Plaintiffs say that adherence to these programs will cause the school districts to miss their targets

under the No Child Left Behind Act, because federal

regulations in place when the suit began provided that no

district may exclude from the prescribed tests more than

1% of its pupils. 34 C.F.R. 200.13(c)(2). (An amendment

effective May 9, 2007, excuses from any testing the 1% of

pupils with the most serious disabilities and allows

alternative tests for pupils with lesser disabilities, though

this latter exception is capped at 2% of all students. These

details do not matter for current purposes.) Defendants

observe, however, that the two school districts that are

the lead plaintiffs in this suit have met their targets so

far, and they assert that speculation about future problems in continuing to achieve “adequate yearly progress”

do not amount to a concrete injury.

That’s true as far as it goes; fears about what the future

may hold differ from the ongoing or imminent loss that

the Supreme Court requires. Compare Friends of the
4 No. 07-2008

Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167 (2000), with Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992). But seeing plaintiffs’ injury as

conjectural or contingent comes from thinking about how

the districts may fare in meeting educational targets (or

individual educational programs) as the only harm.

Compliance with the No Child Left Behind Act is expensive; our colleagues in the sixth circuit recently held that

a school district has standing because satisfying that

statute may cost more than a district receives in federal

grants. See Pontiac School District v. Secretary of Education, 2008 U.S. App. LEXIS 198 (6th Cir. Jan. 7, 2008). One

source of expense is the need to administer multiple

tests—not only those that the school districts believe

best for their pupils, but also those that the national

government requires under the No Child Left Behind Act.

Those costs may not be a large fraction of the school

district’s budget, but the constitutional requirement of

standing differs from a minimum-amount-in-controversy

requirement. Any identifiable injury will do. The requirement of standing “serves to distinguish a person with a

direct stake in the outcome of a litigation—even though

small—from a person with a mere interest in the problem.

We have allowed important interests to be vindicated

by plaintiffs with no more at stake in the outcome of an

action than a fraction of a vote, a $5 fine and costs, and a

$1.50 poll tax.” United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 689 n.14

(1973) (citations omitted). The school districts, at least,

have a “direct stake in the outcome”. They must pay

for more tests than they would administer if left to

their own devices, and this injury can be redressed by a

declaratory judgment excusing the school districts from

complying with the portions of the statute that they

deem objectionable. Thus the school districts have standing, and we need not decide whether the parents also

have standing.
No. 07-2008 5

A remand to address the merits is unnecessary, because plaintiffs’ claim is too weak to justify continued

litigation. Let us suppose, as plaintiffs assert, that the

No Child Left Behind Act and the Individuals with Disabilities Education Act are irreconcilable in some respects. Then the earlier enactment, which is the Individuals with Disabilities Education Act, must give way. Plaintiffs’ view that an earlier law can repeal a later one by

implication has time traveling in the wrong direction.

The Individuals with Disabilities Education Act dates

to 1970, when it was called the Education of the Handicapped Act; it has been renamed several times, most

recently in 1990. The No Child Left Behind Act was sent

to the President in 2001 and took effect in 2002. See 115

Stat. 1426. Although portions of the Individuals with

Disabilities Education Act were amended in 2004 by Pub.

L. 108–446, 118 Stat. 2647, and the whole Act was

reauthorized in the process, none of the amendments

supersedes any portion of the No Child Left Behind Act.

Those provisions with which the No Child Left Behind

Act supposedly conflicts—requiring school districts to

provide free appropriate public educations for all children,

using individualized education programs where necessary—date from 1990 and before. Amendment of a statute

does not make it a “new” law that supplants other statutes adopted between a statute’s original enactment

and its amendment, unless the change is incompatible

with the intervening law. The black-letter rule is that

reauthorization leaves legal norms alone; only alterations

in statutory language matter. See Pierce v. Underwood,

487 U.S. 552, 566–67 (1988). Plaintiffs do not contend that

any of the amendments made in 2004 supersedes any

aspect of the No Child Left Behind Act that matters to

this litigation. To the contrary, the 2004 amendments

were designed in part to conform the Individuals with

Disabilities Education Act to the 2001 Act, not to displace
6 No. 07-2008

it. Thus the asserted conflict is between legislation enacted in 2001 and a structure that was adopted in stages

between 1970 and 1990, and the 2001 statute must

prevail to the extent of any conflict.

This does not rule out the possibility that some state

or federal regulations that purport to rely on the No

Child Left Behind Act are not authorized by that law,

and are disallowed by the Individuals with Disabilities

Education Act. But plaintiffs’ target is the 2001 law itself,

and a federal court cannot forbid application of legislation enacted in 2001 just because it may undermine

legislation enacted between 1970 and 1990.

The judgment of the district court is modified to

dismiss the complaint for failure to state a claim on which

relief may be granted and, as so modified, is affirmed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-11-08