Due process claim against school officials under the Fourteenth Amendment; Whether the school defendants’ actions “shock the conscience”; Doe v Jackson Local Sch Dist Bd of Educ

[This appeal was from the ED-MI.] The court held that the defendants-school officials in this case arising from the Oxford school shooting did not violate plaintiffs-parents’ due-process rights where none of their alleged acts “shock the conscience.” Plaintiffs sued the school district and others involved in the 2021 Oxford school shooting under the rather “narrow[]” theory of “due process.” The district court dismissed all but one claim based on qualified immunity. The court explained that to succeed under their theory, plaintiffs needed to “allege more than that the school officials in these cases”—a counselor (defendant-Hopkins) and the dean of students (defendant-Ejak)—“made bad decisions or could have done more to prevent this tragedy.” They were required to show that these defendants’ actions “were so outrageous, and so callous in their disregard of the danger posed” by the shooter “as to shock the conscience.” The court agreed with the district court that two of the alleged acts at issue, (1) that they returned the shooter's bag and sent him back to class, and (2) that they “concealed” the danger he posed from other school officials, could not support liability. It concluded that returning the backpack left “plaintiffs ‘in no worse position’ than the one in which they would have been had the defendants ‘not acted at all.’” And it noted that “failures to act usually are not affirmative acts for purposes of” the due process theory. Further, plaintiffs pointed to nothing in the record plausibly supporting “an inference that Hopkins or Ejak sought to cover up any risk of harm.” Thus, this omission also could not support liability. The district court thought that Hopkins’ warning to the shooter’s parents that he would contact Child Protective Services if they did not seek help for their son within 48 hours “was an affirmative act because it ‘increased the risk that a mentally unstable teenager’ would harm other students.” The court found that one “could debate that point; but less debatable, in our view, is whether that warning was ‘so outrageous’ as to violate due process.” It found that “Hopkins made that demand to mitigate risk, not to increase it; and his demand was indisputably made for a legitimate governmental purpose, which all but excluded a finding that it was ‘conscience shocking.’” The court concluded that all plaintiffs’ claims here must be dismissed. Affirmed in part and reversed in part.