State-Created Dangers and Conscience-Shocking Conduct: Sixth Circuit Clarifies Due Process Liability in School Settings

Introduction

This commentary examines the landmark decision in Kylie Ossege v. Oxford Community School District, decided March 20, 2025 by the United States Court of Appeals for the Sixth Circuit. In a tragic 2021 school shooting at Oxford High School, a student armed with a handgun killed four classmates and injured several others. The victims’ families sued the school counselor and dean of students under a “state‐created danger” theory of the Fourteenth Amendment’s Due Process Clause. The central question was whether the alleged actions—or inactions—of these two school officials were so “outrageous” as to “shock the conscience” and thereby give rise to constitutional liability.

Key issues addressed:

• Does a warning to a student’s parents—and the threat to involve Child Protective Services—constitute an “affirmative act” that increases risk?
• How does the Sixth Circuit apply the three-part state-created danger test (affirmative act, special danger, conscience-shocking conduct)?
• What standard governs “conscience-shocking” behavior by school officials in light of qualified immunity?

Parties:

• Plaintiffs-Appellees: Families of the victims (e.g., Jeffrey Franz, Steve St. Juliana, Kylie Ossege, et al.)
• Defendants-Appellants/Cross-Appellees: Nicholas Ejak (Dean of Students) and Shawn Hopkins (Counselor)

Summary of the Judgment

The Sixth Circuit affirmed in part and reversed in part the district court’s order dismissing the complaints for failure to plead a constitutional violation. Applying the de novo standard on a Rule 12(c) motion, the court held:

1. Two of the alleged “affirmative acts”—(a) returning the student’s backpack and (b) failing to inform other officials—did not create risk and so could not support due process liability.
2. The only potentially “affirmative act” was Counselor Hopkins’s warning to the student’s parents—threatening to call Child Protective Services unless the student received counseling within 48 hours.
3. Even assuming that warning increased risk, the complaint failed to allege that this conduct was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”
4. Because the plaintiffs’ claims boiled down to tort-style negligence rather than conscience-shocking misconduct, they failed to state a viable Fourteenth Amendment claim.

Judgment: Affirmed in part, reversed in part, and remanded with instructions to dismiss the cases for failure to allege a due–process violation.

Analysis

1. Precedents Cited

• Doe v. Jackson Local School Dist. Bd. of Educ., 954 F.3d 925 (6th Cir. 2020): Established the “state-created danger” framework in school contexts, requiring (1) an affirmative act, (2) special danger, and (3) conscience-shocking conduct.
• DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989): Confirmed that the Due Process Clause does not guarantee general safety, and that omission—failing to protect—is not actionable unless it places the plaintiff in a worse position than before.
• McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006): Recognized qualified immunity in the context of school-supervised activities and clarified the “substantial risk” component for deliberate indifference.
• County of Sacramento v. Lewis, 523 U.S. 833 (1998): Articulated the “conscience-shocking” standard under substantive due process.
• Bukowski v. City of Akron, 326 F.3d 702 (6th Cir. 2003): Held that returning an individual to pre-existing danger does not constitute an affirmative act for due process liability.
• Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834 (6th Cir. 2016): Confirmed that mere omissions—without evidence of concealment or cover-up—cannot support state-created danger claims.

2. Legal Reasoning

The Sixth Circuit applied a three-element test for a “state-created danger” due process claim:

1. Affirmative Act: The defendant must take an action that creates or increases a risk of harm. Here, only Hopkins’s threat to involve Child Protective Services met that threshold; returning the backpack and failing to notify colleagues were non-actionable under DeShaney.
2. Special Danger: The risk must be specific and greater than the general risk faced by the public. The court assumed this element satisfied given the school context and individualized interactions with E.C.
3. Conscience-Shocking Conduct: The official’s behavior must be “so egregious” as to shock contemporary conscience. Qualified immunity requires that the law be “clearly established” such that a reasonable official would know the conduct is unconstitutional.

On the final element, the Court emphasized:

• Counselor Hopkins’s warning was motivated by a legitimate governmental purpose—to secure urgent counseling for a potentially suicidal or violent student.
• Although the warning arguably placed time pressure on the parents, it did not reflect reckless or callous indifference because it sought to mitigate rather than exacerbate risk.
• Therefore, even if it were an affirmative act increasing danger, it was not conscience-shocking under Lewis and Doe.

3. Impact

This decision has significant implications for future due process litigation against school officials:

• It narrows the scope of “state-created danger” claims by reinforcing that only truly egregious and conscience-shocking conduct can give rise to constitutional liability.
• It underscores the high bar for plaintiffs to overcome qualified immunity in the school setting—especially where officials act with legitimate, protective motives.
• It signals that routine disciplinary or counseling decisions, even if mistaken in hindsight, will generally remain within the realm of state tort law rather than federal constitutional law.
• Victims’ families may need to rely primarily on state negligence or malpractice doctrines, as federal due process claims demand an extraordinary showing of intent or recklessness.

Complex Concepts Simplified

Qualified Immunity: A legal doctrine that protects government officials from liability if their conduct did not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.

State-Created Danger Theory: An exception to the general rule that the Due Process Clause does not require states to protect individuals from private violence. Liability arises when a state actor’s affirmative conduct creates or increases a risk of harm.

Affirmative Act vs. Omission: Merely failing to act (omission) does not trigger due process liability; only positive, risk-increasing steps—like releasing a weapon or misleading others—qualify as affirmative acts.

Conscience-Shocking Conduct: The Supreme Court’s standard for substantive due process claims requiring behavior so outrageous that it violates contemporary standards of decency (Lewis, 523 U.S. 833).

Conclusion

The Sixth Circuit’s decision in Kylie Ossege v. Oxford Community School District clarifies and confines the “state-created danger” doctrine in the educational context. By affirming dismissal of these cases, the court reaffirmed that only truly outrageous, conscience-shocking conduct by school officials can transform a tragic event into a constitutional violation. Routine decisions—however mistaken—remain subject to state law tort claims rather than federal due process. This ruling thus provides critical guidance to school administrators, counselors, and lawyers on the boundary between negligence and constitutional wrongdoing.