Bd. of Ed. of Ottawa Tp. High School v. Spellings

• Decision Date: 11 February 2008
• Docket Number: No. 07-2008.,07-2008.
• Citation: 517 F.3d 922
• Parties: BOARD OF EDUCATION OF OTTAWA TOWNSHIP HIGH SCHOOL DISTRICT 140, et al., Plaintiffs-Appellants, v. Margaret SPELLINGS, Secretary of Education, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

517 F.3d 922

BOARD OF EDUCATION OF OTTAWA TOWNSHIP HIGH SCHOOL DISTRICT 140, et al., Plaintiffs-Appellants, v. Margaret SPELLINGS, Secretary of Education, et al., Defendants-Appellees.

No. 07-2008.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 2008.

Decided February 11, 2008.

John M. Izzo (argued), William F. Gleason, Hauser, Izzo, Detella & Petrarca, Flossmoor, IL, for Plaintiffs-Appellants.

Alisa B. Klein (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants-Appellees Margaret Spelling and U.S. Dept. of Educ.

Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees Illinois State Bd. of Educ., Randy J. Dunn and Christopher Koch.

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 districts can solve any problem for themselves by turning down the federal money and escaping the obligations. 2007 WL 1017808, 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, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003); Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Cf. Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (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 decision 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 Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), with Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 512 F.3d 252 (6th Cir.2008). One source of expense is the need to administer multiple tests — not only those that the school districts believe best for their pupils,...