                            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 partic-
ipation. Third, both of the federal statutes require juris-
dictions 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 estab-
lishes 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 com-
ply 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 conclu-
sion 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 pro-
grams 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 prob-
lems 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 expen-
sive; 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 Educa-
tion, 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 require-
ment 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 stand-
ing, and we need not decide whether the parents also
have standing.
No. 07-2008                                               5

   A remand to address the merits is unnecessary, be-
cause 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 Dis-
abilities Education Act are irreconcilable in some re-
spects. Then the earlier enactment, which is the Individu-
als with Disabilities Education Act, must give way. Plain-
tiffs’ 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 Handi-
capped 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 neces-
sary—date from 1990 and before. Amendment of a statute
does not make it a “new” law that supplants other stat-
utes 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 en-
acted 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 legisla-
tion 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
