Second Circuit Notes Split Re Whether a Federal Regulation by Itself Can Create a Right Enforceable Under § 1983

Per D.D. ex rel. V.D. v. New York City Bd. of Educ., 2006 WL 2922093 (2nd Cir. Oct. 12, 2006):

This Court has yet to determine whether a federal regulation, standing alone, can create a right enforceable via § 1983. See Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir.1999) (assuming arguendo that Medicaid regulations can create a right enforceable under § 1983); King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir.1998) (per curiam) (noting the issue, but declining to resolve it); see also Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 437, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (O'Connor, J., dissenting) (describing as "troubling" the question of whether regulations alone can create a federal right enforceable under § 1983). Although the circuits are divided on the question, the majority have determined that where a regulation's enforcing statute confers no federal right, the regulation alone cannot create a right enforceable under § 1983. Compare Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir.2006) (holding a federal regulation alone cannot create a right enforceable through § 1983); [FN12] Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir.2003) (holding "regulations cannot independently create rights enforceable through § 1983"); S. Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771, 790 (3d Cir.2001) (same); Harris v. James, 127 F.3d 993, 1008 (11th Cir.1997) (same); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987) (same); with Samuels v. District of Columbia, 770 F.2d 184, 199 (D.C.Cir.1985) (holding a federal regulation can create a federal right enforceable via § 1983).

We need not address the question here because § 300.342(b)(1)(ii), standing alone, does not create a federal right. Instead, it is the IDEA that creates the right to a free appropriate public education enforceable through § 1983. Section 300.342(b)(1)(ii) merely defines the scope of that right with respect to the requisite time frame for implementing an IEP. See Wright, 479 U.S. at 430-32 (low-income housing tenants could maintain a suit under § 1983 for alleged violations of the rent ceiling provision of the Housing Act of 1937 together with its implementing regulations); see also S. Camden Citizens, 274 F.3d at 783 ("[T]he Wright Court located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right."); Harris, 127 F.3d at 1009 (reading Wright to indicate "that so long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then the statute--in conjunction with the regulation--may create a federal right as further defined by the regulation" (internal quotation marks omitted)).