“There is much cant in American moralism and not a little inconsistency.”
Anti-Vietnam War Senator William Fulbright (March 17, 1964)
When the approximately 860,000 K-12 students attending public schools in Minnesota’s 550-plus school districts return in early January from their current end-of-year Holiday break, they may be joined by a former police officer who was involved in a high-profile slaying six years ago of a Black man who happened to be an employee of the St. Paul Public Schools.
That coalescence may stem from a major post-Thanksgiving ruling by the Minnesota Court of Appeals reversing and remanding the denial of a part-time substitute teaching license for the ex-officer, Jeronimo Yanez. While employed by the City of St. Anthony, Yanez fatally shot a motorist, Philando Castile, a St. Paul school cafeteria supervisor, during a botched traffic stop in the neighboring community of Falcon Heights. The appellate court decision reversing and remanding the denial, In Re Teaching License Application Of Yanez, 2022 WL 17244835 (Minn. Ct. App. Nov. 28, 2022) (unpublished), has been widely reported in other forums, including this one. See A. Fortili, “Court: Board must reconsider ex-cop’s teaching application,” in the Dec. 1, 2022, edition of Minnesota Lawyer.
That attention is not surprising due to the high-profile nature of the incident, which the appellate court pointedly referred to as having generated “strong public response [and] … extensive media coverage” locally, nationally, and even internationally, coupled with protests, demonstrations, and condemnations issued by Gov. Mark Dayton and President Barack Obama, among others.
But the opinion, authored by Chief Judge Susan Segal, and joined by Judges Diane Bratvold and Sarah Wheelock, may have sweeping impact beyond the classrooms in Minnesota. As a published decision, it could form a precedent for challenges to other licensing practices, procedures, statutes, and contractual provisions, in both public and private sectors relating to what is generally known as “morals” matters. Because of its prospective impact, the Yanez ruling, warrants further examination and its potential implications.
The traffic stop and ensuing saga have been widely documented and is well-known. Basically, as the case summarizes, Yanez stopped the vehicle driven by Castile, who had his girlfriend and her 6-year-old daughter, in the car, due to a minor traffic infraction. It escalated into a fatality when Castile, after pulling over his car, told the officer approaching the vehicle that he had a pistol in the car and had a license for it. While ostensibly reaching into his pocket for the license, he was shot seven times and killed.
Yanez was subsequently charged with multiple felonies, but he was acquitted after lengthy deliberations by a Ramsey County District Court jury. The city, through its insurance carrier, subsequently settled civil claims by Castile’s family and his passenger for $3.8 million.
After the acquittal, Yanez was fired from the police department and disappeared from public view … until now.
Meanwhile, Yanez was teaching Spanish part time at a Twin Cities parochial school, which does not necessitate a license. However, when he sought a substitute position with a three-year licensure, his application was denied by the Minnesota Professional Educational Licensing and Standards Board (formerly known as the “Board of Teaching”). The agency based its denial on a statutory provision prohibiting licensure for individuals who have displayed “immoral character or conduct” under Minn. Stat. §122A.20, subd. 1(a)(1).
The license refusal occurred after a committee of the board denied his application, which was upheld by an administrative law judge (ALJ) with the Office of Administrative Hearings. After a lengthy hearing that included pedagogical and law enforcement experts proffered by both the board and Yanez, the ALJ determined that Yanez engaged in a “pretextual” stop of Castile that was “indicative of racial bias” and that his conduct was “morally wrong.”
The ALJ concluded that having Yanez in the classroom would be detrimental to the students, especially those of color.
The board adopted the ALJ’s recommendation, determining that Yanez was barred from licensure because of his “immoral conduct” under the statute.
Yanez appealed the determination by certiorari to the court of appeals, which overturned the ruling and sent it back for further consideration.
Several arguments asserted by Yanez were unavailing, including his contention that the process improperly shifted the burden of proof to him. The proposition was rejected because an “applicant has the burden of proof to show that an application should be granted,” an obligation that was properly thrust upon him because he was seeking to “change the status quo.”
A number of other procedural substantive arguments advanced by Yanez, including the lack of substantial evidence to support the determination, were also turned down.
But Yanez succeeded on the most compelling issue: whether the statute was impermissible under the Due Process clause of the 14th Amendment because it was excessively vague. Pointing to case law in other jurisdictions as well as parallel cases involving licensure in Minnesota regarding professional licensure, the court felt that the statutory language failed to give “fair warning” to an applicant and its nebulous terminology lends itself to “caprice [and] arbitrary decision making,” along with potentially “biased enforcement.”
These vices, the appellate court concluded, made this statute unenforceable by its terms.
That determination, however, did not end the matter. The constitutional infirmity could be cured by construing it “narrowly,” which the court proceeded to do, by defining the vital “immoral” term to require that the offensive behavior occurred in a “professional context.” This required determining whether the incident relates to his “fitness to teach in a public school,” which should be the “exclusively focus,” rather than his fitness as a police officer.
In reversing the denial, the court did not mandate that the license be issued. Rather, it remanded the matter to the board for further deliberation, which should be undertaken with “great circumspection,” identifying whether and how his conduct relates to his “fitness” for teaching. That may be determined by the board or, in its discretion, reopened for further evidentiary proceedings before an ALJ.
Coincidentally, the 8th Circuit Court of Appeals in a Minnesota-related ruling addressed another “morals” clause claim less than two weeks before the Yanez decision in an immigration imbroglio.
In Llanos-Trejo v. Garland, 53 F.4th 458 (8th Cir. Nov. 16, 2022), the circuit court upheld an administrative determination upholding denial of a motion to reopen a removal (deportation) proceeding against an immigrant who had multiple DUI offenses. An immigration law judge found that the applicant satisfied the “good moral character” requirement to challenge deportation and that removal would cause hardship to his three children who were U.S. citizens, one of whom was a student at the University of Minnesota and a pair of minors living here. But the judge found that he failed to establish “extreme and unusual hardship to his qualifying relatives” to warrant reopening on remand.
The appellate court affirmed, reasoning that the claimant “failed to make a sufficient showing of good moral character” under Immigration Rules, 8 CFR, § 316.10, even though the government had conceded that feature earlier in the proceedings, before it subsequently challenged it. No effort was made, unlike Yanez, to contest the imprecision of that terminology, which is associated with a number of explicit provisions and examples in Immigration law protocols.
Although not directly on point, the Yanez ruling has implications for the State Criminal Offender Rehabilitation Act (CORA), Minn. Stat. § 364.01, which bars public sector employers and licensing authorities from denying employment or licensure applicants with a criminal conviction unless the offense “directly relates” to the position, unless the aspirant shows evidence of sufficient rehabilitation and “fitness” to perform the job duties. While that language is more specific and subject to objective analysis, it still consists of some vagueness that could predicate a Yanez-type challenge.
While important to the litigants, the board and Yanez, as well as students that he may be prospectively teaching, the Minnesota appellate ruling may have much broader impact.
Other public sector licensure provisions, including for lawyers, have “morals” clauses, or take ethical behavior into account, in granting or denying licensure. Those are likely to be affected by this decision and may have to incorporate the tribunal’s construction related to the particular job duties.
But the private sector may be affected, too, particularly those companies with high-level personnel, who often have “moral” clauses, allowing management to terminate the arrangement for improper or “immoral” behavior, even if unrelated to the particular job. In fact, there have been a number of occasions, some highly publicized, in which high-level personnel have been discharged, often with handsome severance packages, on “morality” grounds. They also arise in connection with terminations of contractual relationship with athletes and celebrities under the “morals” clauses in endorsement, licensing, and royalties matters like the recent termination of Nike’s lucrative arrangement with the rapper Ye (formerly Kanye West), due to his antisemitic remarks. E. g., D. Auerbach,” Morals clauses as Corporate Protection in Athlete Endorsement Contracts,” 3 DePaul Journal of Sports Law (Summer, 2015).
On some occasions, the disciplinary actions, usually terminations or forced resignations, have taken place under contractual clauses, while in others the sanctions have been effectuated under more general company polices or handbook provisions akin to morality clauses. They include former Timberwolves executive Gersson Rosas, fired in 2021 following disclosure of a relationship with a female subordinate, and Vikings star running back, Adrian Peterson, barred in his prime for most of the 2014 season due to a child abuse matter.
The Yanez ruling may augment the ability of displaced employees to contest those types of disciplinary actions, even though not governed by constitutional Due Process considerations like public school teaching licensure in Yanez. Private sector entities may face challenges on grounds that “morals” terminology is impermissible, and, under conventional legal tenets must be construed “narrowly” as in Yanez, and against the drafters and in favor of the employees subject to them.
That outlook may bolster the opportunities of employees to achieve better out-of-court settlements through negations, mediation, or other ADR devices, as well as in litigation.
Whether that occurs remains to be seen. But employees disciplined under “morals” clauses in contracts or company policies, as well as those denied licensure applications on those grounds may, like Yanez, want to take a shot at it.
Some “morality” clauses in pro sports
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
Correction: This article has been revised to correct passages in which the names Yanez and Castile were inadvertently switched.
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