Affirmation of the Narrow “Conscience-Shocking” Standard Under the State-Created Danger Doctrine

Introduction

In Nicholette Asciutto v. Oxford Community School District, the Sixth Circuit addressed whether two school officials—counselor Shawn Hopkins and dean of students Nicholas Ejak—could be held liable under the Fourteenth Amendment’s Due Process Clause for failing to prevent the Oxford High School shooting of November 30, 2021. In that tragedy, a 15-year-old student (E.C.) killed four classmates and injured others. Survivors and families sued the officials, invoking the “state-created danger” theory of constitutional liability. The plaintiffs alleged that Hopkins and Ejak engaged in affirmative acts—most notably, threatening to call Child Protective Services (CPS) if E.C.’s parents did not obtain counseling within 48 hours—that increased the risk of harm and “shocked the conscience.”

The key issues were (1) whether those discussions and the return of E.C.’s backpack after the parents’ meeting amounted to “affirmative acts” that created or increased a danger, and (2) whether such acts were so egregious as to satisfy the “shocks the conscience” standard of substantive due process. The district court dismissed all but one strand of the plaintiffs’ claims; the Sixth Circuit reviewed that decision on interlocutory appeal governed by qualified-immunity principles.

Summary of the Judgment

The Sixth Circuit affirmed in part and reversed in part, ultimately directing dismissal of all claims. It held that (1) returning E.C.’s backpack did not alter his risk profile and thus was not an “affirmative act” creating danger, and (2) the officials’ failure to warn other school authorities likewise was an omission, not a state-created danger. The sole act the district court had allowed to proceed—the threat to involve CPS if E.C.’s parents failed to secure counseling—did amount to an affirmative step, but it was not “so outrageous” or “conscience-shocking” to violate substantive due process. The court reaffirmed that state actors must display a level of deliberate indifference or callousness so extreme that it “shocks the contemporary conscience.”

Because the plaintiffs alleged nothing beyond ordinary steps to mitigate risk (urgent meeting, counseling demand, CPS warning), their claims sounded in tort rather than constitutional violation. The Sixth Circuit therefore dismissed all claims against Hopkins and Ejak.

Analysis

1. Precedents Cited

Doe v. Jackson Local School Dist. Bd. of Educ., 954 F.3d 925 (6th Cir. 2020): Established the three-part state-created danger framework—(a) an affirmative act, (b) special danger to a specific victim, and (c) conscience-shocking conduct.
County of Sacramento v. Lewis, 523 U.S. 833 (1998): Formulated the “shocks the conscience” test for substantive due process; distinguishes between high-speed pursuits and other government conduct.
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989): Held that the Due Process Clause does not guarantee minimal safety from private violence absent state creation or enhancement of danger.
Bukowski v. City of Akron, 326 F.3d 702 (6th Cir. 2003): Clarified that returning a person to pre-existing risks does not constitute an affirmative act for state-created danger liability.
McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006): Applied state-created danger to school context; required conscious disregard of a known risk.
Est. of Romain v. City of Grosse Pointe Farms, 935 F.3d 485 (6th Cir. 2019): Emphasized that mere omissions or failures to inform do not ordinarily satisfy the affirmative-act requirement.
Mitchell v. Forsyth, 472 U.S. 511 (1985): Confirmed interlocutory appealability of qualified-immunity rulings.

2. Legal Reasoning

To defeat qualified immunity on a pleading, the plaintiffs needed plausible allegations that each defendant (a) violated a constitutional right and (b) did so under clearly established law. Under the state-created danger doctrine, substantive due process triggers only if a state actor’s affirmative conduct (not mere inaction) creates or intensifies a risk to an identifiable victim, and exhibits “reckless or callous indifference” so extreme that it “shocks the conscience.”

The panel first addressed two purported acts—returning E.C.’s backpack and concealing risk from other officials—and held both insufficient: the backpack return could not worsen a pre-existing danger, and inaction cannot be an affirmative act absent evidence of a cover-up. The CPS threat was arguably affirmative, but the panel concluded it was aimed at reducing risk (by pressuring parents into counseling) and carried a legitimate pedagogical and protective purpose. Nothing in the complaints suggested Hopkins or Ejak acted with malice, deliberate indifference, or sadistic intent. On the contrary, their conduct reflected concern for E.C.’s welfare, underscoring the non-conscience-shocking character of the CPS warning.

3. Impact

This decision tightens the scope of school-based state-created danger claims, signaling to courts and litigants that ordinary protective and guidance measures—meetings with parents, counseling referrals, and even conditional threats of CPS involvement—will not constitute constitutional violations unless accompanied by truly egregious, conscience-shocking conduct. Going forward:

Schools gain assurance that efforts to secure mental-health interventions will generally remain within the realm of tort law, not federal constitutional liability.
Plaintiffs will face a higher bar in pleading affirmative acts that transform a private actor’s risk into a state-created danger under due process.
Lower courts will likely apply this decision as binding within the Sixth Circuit and persuasive elsewhere, reinforcing the distinction between negligence and constitutional wrongdoing in school-shooting aftermaths.

Complex Concepts Simplified

Due Process Clause (Fourteenth Amendment): Protects individuals from certain government actions that deprive life, liberty, or property without legal process. It does not guarantee safety from private violence unless a state actor has significantly contributed to the risk.
Qualified Immunity: Shields government officials from suit unless they violate a constitutional right that was “clearly established” at the time. At the pleading stage, plaintiffs must allege facts showing both a constitutional violation and that the law was clear.
State-Created Danger Doctrine: A narrow pathway for due-process claims against officials who (1) take an affirmative step increasing a private danger, (2) expose a specific victim to risk above that faced by the general public, and (3) act with deliberate indifference so outrageous it “shocks the conscience.”
“Shocks the Conscience” Standard: A stringent test derived from landmark cases like County of Sacramento v. Lewis, requiring extreme government misconduct—beyond negligence or simple recklessness—to implicate substantive due process.

Conclusion

Nicholette Asciutto v. Oxford Community School District reaffirms the Sixth Circuit’s commitment to a narrow, demanding standard for state-created danger claims. School officials’ efforts to secure counseling—even under threat of CPS—were deemed protective rather than constitutionally offensive. The decision draws a clear line between tort-style allegations of negligence or poor judgment and the rare breed of governmental misconduct that “shocks the conscience.” In doing so, it provides important guidance to schools, parents, and future litigants on the limits of substantive due-process liability in the wake of school-based tragedies.