## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 07-2008

B OARD OF E DUCATION OF O TTAWA T OWNSHIP H IGH S CHOOL D ISTRICT 140, et al

., Plaintiffs-Appellants

, v.

MARGARET S PELLINGS , 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—D ECIDED F EBRUARY 11, 2008

____________

Before E ASTERBROOK , Chief Judge , and F LAUMand E VANS , Circuit Judges

. E ASTERBROOK , 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 voluntar y programs, and the school2 No. 07-2008

districts can solve any problemfor themselves by turning down the federal money and escaping the obligations. 2007 U.S. Dist. L EXIS 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 le vel. Second, several of the plaintiffs are parents, who la ck 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 gran t 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 au thorized by federal law. Acondition 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 attachedto 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 st anding: the school districts have yet to suffer a concrete injury. The No Child Left Behind Act demands that sch ool 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 di stricts to miss their targets under the No Child Left Behind Act, because federal regulations in place when th e 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 seri ous disabilities and allows alternative tests for pupils wi th lesser disabilities, though this latter exception is capped at 2% of all students. These details do not matter for cu rrent purposes.) Defendants observe, however, that the two school districts that are the lead plaintiffs in this suit have met their targets sofar, 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. CompareFriends of the4 No. 07-2008

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

., 528 U.S. 167 (2000), withLujan 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 m eeting educational targets (or individual educational progr ams) 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. SeePontiac School District v. Secretary of Education , 2008 U.S. App. L EXIS 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 th e No Child Left Behind Act.

Those costs may not be a large fraction of the school district’s budget, but the co nstitutional 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 me re 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 th e 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 theydeem objectionable. Thus the school districts have standing, and we need not deci de whether the parents also have standing.No. 07-2008 5

A remand to address the me rits 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 an d the Individuals with Disabilities Education Act are irreconcilable in some respects. Then the earlier enac tment, 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 datesto 1970, when it was called the Education of the Handicapped Act; it has been re named 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” la w that supplants other statutes adopted between a st atute’s original enactment and its amendment, unless th e change is incompatible with the intervening law. Th e black-letter rule is that reauthorization leaves legal no rms 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 displace6 No. 07-2008

it. Thus the asserted conflic t 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 In dividuals 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