MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court is Defendant's Motion for Reconsideration (Doc. No. 40). After considering the motion, the responses thereto, and the applicable law, the Court finds that Defendant's motion for reconsideration must be GRANTED and Plaintiff's due process claim brought pursuant to § 1983 dismissed.

I. BACKGROUND

Plaintiff Amy Truong, individually and in her representative capacity for the Estate of Asher Orrin Michael Brown ("Plaintiff" or "Truong"), brings this suit following the suicide of her son, Asher Orrin Michael Brown ("Asher"), a middle school student in the Cypress Fairbanks Independent School District. Plaintiff asserts that Asher committed suicide after suffering as a victim of constant bullying by other students. (Complaint ("Compl."), Doc. No. 12, at ¶ 98.) Plaintiff alleges that Cypress Fairbanks Independent School District ("CFISD" or "Defendant"), through its acts and omissions, failed to protect Asher from harm while he attended Hamilton Middle School.1 (Id. ¶¶ 10-11.)

Plaintiff originally brought claims under the Rehabilitation Act and Title IX, as well as First Amendment, Equal Protection, and Due Process claims pursuant to 42 U.S.C. § 1983. Defendant filed a motion to dismiss all of Plaintiff's claims (Doc. No. 18). On February 21, 2012, this Court issued an order granting in part and denying in part Defendant's motion to dismiss.2 ("February 21 Order," Doc. No. 36.) The Court ruled that Plaintiff had stated a due process claim pursuant to 42 U.S.C. § 1983 and a harassment claim under Title IX, 20 U.S.C. § 1681(a). (Id.) Defendant now asks this Court to reconsider its ruling on Plaintiff's due process claim in light of Doe v. Covington County School Board, 675 F.3d 849 (5th Cir.2012), an en banc Fifth Circuit decision issued after this Court's February 21 Order. Defendant contends that this recent decision clarifies that Plaintiff's due process claim fails as a matter of law and, therefore, asks this Court to dismiss Plaintiff's due process claim brought pursuant to § 1983. Plaintiff filed a response in opposition (Doc. No. 45) to Defendant's motion for reconsideration. Defendant filed a reply brief (Doc. No. 46) and a supplemental authority in support of Defendant's argument (Doc. No. 47).

II. LEGAL STANDARD

A. Rule 59(e) motions

Rule 59(e) provides that a motion to alter or amend a judgment must be filed no later than twenty-eight days following the entry of judgment. FED. R. CIV. P. 59(e). Depending on the timing of the motion, the Fifth Circuit treats a motion for reconsideration as either a motion to alter or amend under Rule 59(e), or a motion for relief from judgment under Rule 60(b). United States v. Turner, No. CA 11-928, 2011 WL 2836752, at *1 (E.D.La. July 15, 2011) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990)). If the motion is filed within twenty-eight days of the judgment, then the motion constitutes a motion to alter or amend under Rule 59(e). Id.; FED. R. CIV. P. 59(e). A motion filed more than twenty-eight days after the judgment, but not more than one year after the entry of judgment, is governed by Rule 60(b). FED. R. CIV. P. 60(b).

Because Defendant's motion to dismiss was only partially granted, final judgment was never entered in this case. Therefore, the Court treats the instant motion as a Rule 59(e) motion for reconsideration. A district court has considerable discretion to grant or deny a motion under Rule 59(e). Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir.1993). A court's reconsideration of an earlier order is an extraordinary remedy and should be granted sparingly. Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D.La. Feb. 3, 1998), aff'd, 182 F.3d 353 (5th Cir.1999); see also Rottmund v. Cont'l Assur. Co., 813 F.Supp. 1104, 1107 (E.D.Pa.1992) (although federal district courts have inherent power over interlocutory orders and may modify, vacate, or set aside these orders when the interests of justice require, "[b]ecause of the interest in finality ... courts should grant motions for reconsideration sparingly").

To succeed on a Rule 59(e) motion, a party must clearly establish at least one of the following factors: (1) an intervening change in the controlling law, (2) the availability of new evidence, or (3) a manifest error of law or fact. Fields, 1998 WL 43217, at *2; see also Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir.2003); Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.2005). As the Fifth Circuit has explained, "Rule 59(e) does not set forth any specific grounds for relief." Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994). Although a district court has "considerable discretion in deciding whether to reopen a case" under Rule 59(e), "[t]hat discretion, of course, is not limitless." Id. at 174. However, the Fifth Circuit has emphasized that a Rule 59(e) motion "is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Templet v. HydroChem Inc., 367 F.3d 473, 478-9 (5th Cir.2004).

III. ANALYSIS

Relying on the recent Fifth Circuit decision in Doe v. Covington County School Board, 675 F.3d 849 (5th Cir.2012), Defendants argue that Plaintiff's § 1983 due process claim necessarily must fail as a matter of law. In Covington, the Fifth Circuit considered whether the plaintiff — a nine-year old elementary school student — adequately alleged a violation of a constitutional right where the plaintiff was checked-out and molested on six separate occasions by a man who was not authorized to take the plaintiff out of school. 675 F.3d at 854-55. As the Fifth Circuit explained, the plaintiff's constitutional claim was based not on the individual's molestation of the plaintiff, "but rather upon the school's allegedly deficient check-out policy, which allowed the molestation to occur" insofar as it did not require school officials to verify the identity of individuals before releasing children into their custody. Id. Finding that the school district defendants had no constitutional duty to protect the plaintiff from non-state actors, the Fifth Circuit determined that the plaintiff failed to allege a violation of any constitutional right. Id. Further, the Fifth Circuit clarified that a school district's duty to protect a student is contingent upon the existence of a special relationship, as defined in the Supreme Court's DeShaney opinion. Id.

"As a general matter ... a state's failure to protect an individual against private violence simply does not constitute a violation of due process." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court first mapped out the "special relationship" exception to that general rule. Under the special relationship exception, a state may be required to protect a citizen from harm, even private harm, "when the State takes a person into its custody and holds him there against his will." Id. at 199-200, 109 S.Ct. 998. The Fifth Circuit has subsequently extended the special relationship exception to the following three scenarios: (1) incarceration, (2) involuntary institutionalization, and (3) the placement of children in foster care. Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir.1990).

In the present case, Plaintiff argues that CFISD violated Asher's due process rights by failing to enforce anti-bullying policies at Hamilton Middle School. When this Court originally considered Defendant's motion to dismiss (Doc. No. 18), it contemplated three possible bases for Plaintiff's due process claim. First, the Court considered Plaintiff's argument that CFISD's inaction in failing to enforce the policies allowed the bullying — and harm to Asher's bodily integrity — to continue and, indeed, to escalate to the point that it became unbearable to Asher. Second, the "special relationship" exception could have been proposed to argue that the school district had duty to protect Asher.3 Third, the Court considered whether CFISD could be liable under a state-created danger theory of the case, as Plaintiff argued that CFISD's "culture that condoned bullying" increased the danger posed to Asher during the school day. The Court dismissed the latter bases for Plaintiff's claim, finding that Plaintiff had not advanced a special relationship theory and that Plaintiff's state-created danger theory failed as a matter of law.4 However, the Court allowed Plaintiff's due process claim to proceed under the first argument, reasoning that the existence of explicit CFISD policies mandating action on the part of Defendants in the face of student-on-student bullying gave rise to CFISD's duty to protect Asher from bodily harm and threats to his bodily integrity. Defendants now ask this Court to reconsider the viability of this first argument, arguing that, post-Covington, it can no longer serve as the foundation for Plaintiff's claim. The Court finds here that Defendants are correct.

The Covington opinion clarifies that the Fifth Circuit makes any public school student's right to bodily integrity contingent upon the existence of a special relationship between the student and the school. And the Covington decision further circumscribes the application of the special relationship exception, confining it to the three scenarios listed above. See Covington, 675 F.3d at 856-57 ("We have not extended the DeShaney special relationships exception beyond these three situations, and have explicitly held that the state does not create a special relationship with children attending public schools.").

Plaintiff argues that the facts of Covington are distinguishable from the instant case because here the policies in place would have been effective had they been enforced, in contrast to the defective policy at issue in Covington. Plaintiff's attempt at a distinction makes no difference. Regardless of whether the issue is existence of a policy or enforcement of a policy, CFISD policies promising school action to prevent student-on-student bullying cannot serve as a basis for Asher's constitutional due process rights. Because the policies at issue were intended to govern non-state actors — i.e., the behavior between and among other school children — CFISD's failure to enforce the policies did not result in the violation of Asher's constitutional rights. CFISD had no constitutional duty to protect Asher from harm inflicted by a non-state actor and, therefore, could not have violated Asher's constitutional rights in failing to do so.

Plaintiff is correct in pointing out that this Court did not initially frame its decision allowing Plaintiff's § 1983 due process claim to proceed in terms of the special relationship exception. Instead, this Court focused on CFISD's inaction as evidence of deliberate indifference. This Court's focus was misplaced. Covington makes clear that any duty to protect must be moored to a special relationship. "Without a special relationship, a public school has no constitutional duty to ensure that its students are safe from private violence." Covington, 675 F.3d at 858 (emphasis in original). "An allegation of deliberate indifference may be sufficient to violate a constitutional duty, but it is not sufficient to create the constitutional duty." Id. at 862. Because there is no special relationship between CFISD and Asher, the Court's original basis for allowing Plaintiff's § 1983 claim to proceed was incorrect.5

Two prongs of Rule 59(e) are arguably satisfied here. To the extent that the Covington opinion holds that deliberate indifference alone, without the existence of a special relationship, is insufficient to give rise to a constitutional duty to protect a public school student from violence at the hands of other students, Defendants' motion for reconsideration must be granted on the grounds of an intervening change in the controlling law.6 Fields, 1998 WL 43217, at *2. As Covington makes clear, CFISD's "failure to protect the student [Asher] from private harm (even if foreseeable) d[oes] not give rise to a constitutional claim in the absence of a finding that a custodial relationship already existed." 675 F.3d at 863; see also 675 F.3d at 863 ("Because we find no special relationship, we do not address whether the school's alleged actions ... amounted to `deliberate indifference.'"). To the extent that the Covington decision merely solidifies this position in the Fifth Circuit, as some of the language in the decision would suggest, this Court's prior ruling allowing Plaintiff's § 1983 claim to proceed on evidence of deliberate indifference alone constituted an error of law, also necessitating a grant of Defendant's motion here. See, e.g., Covington, 675 F.3d at 857 ("We reaffirm, then, decades of binding precedent: a public school does not have a DeShaney special relationship with its students requiring the school to ensure the students' safety from private actors.").

Plaintiff nonetheless argues that this Court may allow Truong's claim to proceed based solely on the plain language of 42 U.S.C. § 1983, even in the absence of any special relationship foundation.7 Section 1983 states:

42 U.S.C. § 1983 (emphasis added). The language of § 1983, as further clarified under Covington, makes clear that Truong's claim cannot proceed. To state a claim under § 1983, "a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Covington, 675 F.3d at 854-55 (citing James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008)). While the Fifth Circuit has previously recognized a student's right to bodily integrity, that right is only violated where a state actor deprives the student of that right. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994).

Here, the alleged violations of Asher's bodily integrity were caused by other students at Hamilton Middle School who bullied Asher, and by Asher's own actions in taking his life. Plaintiff claims that CFISD caused Asher to be subjected to the deprivation of his right to bodily integrity by failing to investigate allegations of bullying or otherwise intervene in his defense. For CFISD to be liable under § 1983, CFISD must first have a constitutional duty to protect Asher from non-state actors. As the Fifth Circuit has underscored in Covington, CFISD had no such duty in the absence of a special relationship. Because Plaintiff has not — and cannot — allege such a special relationship, there is no foundation for stand-alone statutory liability under § 1983.8

The restraints placed on the Court by Covington — and, indeed, by DeShaney and its progeny in the Fifth Circuit — are nonetheless troubling. The holding in Covington has the undesirable effect here of allowing a school district to affirmatively enact anti-bullying policies which purport to assume responsibility to react to private violence, that is, violence inflicted by other students, yet absolve the same school district of responsibility for enforcement of such policies absent the existence of a special relationship. Sadly, this is not new. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (finding that plaintiff had failed to state a due process claim where police failure to enforce restraining order against plaintiff's estranged husband resulted in husband's killing of plaintiff's three daughters).

Further, the effect of Covington would seem to undermine state laws requiring schools to adopt — and, presumably, enforce — anti-bullying policies.9 The Fifth Circuit is content to pass this concern on to the state courts, positing that schools "may have such a duty [to ensure that students are safe during the school day] by virtue of a state's tort or other laws." Covington, 675 F.3d at 858. This stance is especially unfortunate here given that the Texas Tort Claims Act forecloses Truong from pursuing a state law remedy in this case.10 See TEX. CIV. PRAC. & REM.CODE § 101.001 et seq. Following Covington, in the absence of a special relationship between the school and the student, public school officials who enact anti-bullying policies do not violate a student's constitutional due process rights by failing to enforce such policies, no matter how pervasive the bullying, no matter how hateful, and no matter how many lives, in addition to Asher's, are lost.

IV. CONCLUSION

In light of the Fifth Circuit's ruling in Doe v. Covington County School Board, 675 F.3d 849 (5th Cir.2012), the Court has determined that Defendants' Motion for Reconsideration (Doc. No. 40) must be GRANTED and the Court hereby dismisses Plaintiff's due process claim under 42 U.S.C. § 1983 for failure to state a claim upon which relief can be granted.

IT IS SO ORDERED.