Could a Minnesota public school bar a graduating senior from walking across the stage at graduation because of unpaid school lunch debt?

Plain-English summary

In May 2019, just before the spring graduation season, Education Commissioner Mary Cathryn Ricker informed AG Keith Ellison that several Minnesota school districts had policies restricting students' ability to participate in graduation ceremonies when those students had unpaid school meal debt. She asked whether the practice violated Minnesota law.

The AG concluded it did under both the Public School Fee Law and the Lunch Aid Law.

First, the Minnesota Public School Fee Law (Minn. Stat. §§ 123B.34-39). § 123B.35 sets the policy: "It is the policy of the state of Minnesota that public school education shall be free." And it explicitly identifies "any practice leading to suspension, coercion, exclusion, withholding of grades or diplomas, or discriminatory action based upon nonpayment of fees" as denying pupils "their right to equal protection and entitled privileges." § 123B.37, subd. 2 then bars schools from denying or abridging "any pupil's rights or privileges, including the receipt of grades or diplomas" for nonpayment of fees.

The AG worked through two issues to apply the Fee Law: whether the lunch charge was a "fee" within the Law, and whether the privilege of walking at graduation fell within the protected category.

On the first issue, the lunch charge was an authorized fee. § 123B.36, subd. 1(b)(6) authorizes "fees specifically permitted by any other statute"; federal law (42 U.S.C. § 1760(p)(2)) requires school food authorities to set a price for paid lunches; and state law (§ 124D.111, subd. 4) acknowledges school meal charges. § 123B.36, subd. 1(b)(5) also authorizes fees for "items of personal use or products that a student has an option to purchase," which can include a meal. Either way, the lunch charge was a fee.

On the second issue, the AG applied two textual cues from § 123B.37, subd. 2. The word "including" before "the receipt of grades or diplomas" is non-exclusive (Fed. Land Bank of St. Paul v. Bismarck Lumber Co., U.S. 1941; LaMont v. Indep. Sch. Dist. No. 728, Minn. 2012). Graduation participation is a "privilege" within the broader statutory protection. Cases from other states (Nieshe v. Concrete Sch. Dist., Wash. 2005; Williams v. Austin Indep. Sch. Dist., W.D. Tex. 1992) and the Minnesota federal court (Olson v. Robbinsdale Area Schools, D. Minn. 2004) had held that graduation participation is not a constitutional property right comparable to the diploma itself but rather an important educational benefit or privilege, analogous to participation in extracurricular athletics under Brown v. Wells (Minn. 1970).

So Fee Law analysis: lunch is a fee, graduation participation is a privilege protected from fee-nonpayment-based denial, and the exclusion practice violates § 123B.37, subd. 2.

Second, the lunch-aid law. § 124D.111, subd. 4 required participating schools to ensure that payment reminders did not demean or stigmatize children. The AG said denying graduation participation over unpaid meals was a reminder or message to others that would demean or stigmatize the student.

The opinion closed by noting pending legislation on school meals and lunch aid. It also explained that a school could still pursue legal collection of unpaid fees.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion quotes the 2018 versions of the cited statutes. Check the current statutory text before applying its reasoning to a present dispute.

What this opinion meant at the time

For school boards in 2019 facing the immediate graduation season, the opinion said that students eligible to receive diplomas could not be excluded from graduation ceremonies because of meal debt. Boards with policies linking participation to debt payment needed to review those policies against the opinion.

For school administrators and principals, the opinion said it was binding on school officers unless overruled by a court. It cited Eelkema v. Bd. of Educ. of Duluth (Minn. 1943) and Minnesota Voters Alliance v. Anoka-Hennepin Sch. Dist. (Minn. Ct. App. 2015) for that point.

For school district attorneys, the opinion preserved schools' right to pursue legal collection of unpaid fees while barring graduation exclusion over meal debt. Review both the participation and collection policies when advising a district.

For parents of graduating seniors at the time, the opinion answered the immediate question: an eligible student could not be denied participation in graduation ceremonies because of an unpaid meal balance.

For student advocates, the opinion provided the AG's reasoning under both the school fee and lunch aid laws for challenging a meal-debt graduation policy.

Common questions

Q: Did this opinion mean the school couldn't even withhold the diploma itself? A: The opinion quoted § 123B.37, subd. 2 which explicitly says "including the receipt of grades or diplomas" cannot be denied for fee nonpayment. So no, the school could not withhold the diploma either.

Q: Could the school still pursue collection for the unpaid balance? A: Yes. The opinion's last paragraph specifically preserved the school's right to "pursue legal collection action for unpaid fees." The point was that the collection mechanism could not be tied to denying the student's educational rights.

Q: Was this opinion only about formal "graduation" or also about other end-of-year ceremonies? A: The request and conclusion concern graduation ceremonies or activities. The opinion does not decide whether a different school event falls within the statutory protection.

Q: Was the AG opinion limited to public schools, or did it cover charter and private schools too? A: Footnote 1 defines "public schools" to include Minnesota public elementary and secondary schools, school districts, and charter schools subject to the Public School Fee Law. The opinion does not address private schools.

Q: Could a school collect the unpaid meal balance?
A: Yes. The AG expressly said schools retained the right to pursue legal collection action for unpaid fees. The school could not use graduation exclusion as the means of collection.

Background and statutory framework

The Minnesota Public School Fee Law (Minn. Stat. §§ 123B.34-.39), with § 123B.35's policy that public school education is free and § 123B.37, subd. 2's prohibition on denying rights or privileges for fee nonpayment, has been on the books for decades. The Law contemplates "authorized fees" under § 123B.36, subd. 1(b), but tightly constrains practices linked to nonpayment.

The version of Minn. Stat. § 124D.111, subd. 4 quoted in the opinion required school lunch program participants to ensure that reminders for unpaid balances did not demean or stigmatize children in the program.

The Federal school lunch framework runs through 42 U.S.C. § 1760(p)(2), which requires school food authorities to set a price for paid lunches served to students not certified for free or reduced-price meals.

The interpretive framework drew on the "including" canon (Fed. Land Bank of St. Paul v. Bismarck Lumber Co., U.S. 1941; LaMont, Minn. 2012), which treats the word "including" in statutes as non-exhaustive. Cases on graduation participation as a privilege rather than a constitutional property right came from Nieshe v. Concrete Sch. Dist. (Wash. 2005), Williams v. Austin Indep. Sch. Dist. (W.D. Tex. 1992), and Olson v. Robbinsdale Area Schools (D. Minn. 2004). The Minnesota Supreme Court's Brown v. Wells (1970) established that participation in interscholastic sports is a privilege; the AG analogized graduation participation to the same category.

AG opinions on school matters under Minn. Stat. § 8.07 are "decisive" until overruled by a court (Eelkema, Minn. 1943; Minnesota Voters Alliance, Minn. Ct. App. 2015).

Citations and references

Statutes:

• Minn. Stat. § 8.07
• Minn. Stat. § 120A.10
• Minn. Stat. §§ 123B.34-.39 (Public School Fee Law)
• Minn. Stat. § 123B.35
• Minn. Stat. § 123B.36, subd. 1(b)
• Minn. Stat. § 123B.37, subd. 2
• Minn. Stat. § 124D.111, subd. 4 (version quoted in the 2019 opinion)
• 42 U.S.C. § 1760(p)(2)

Cases:

• Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95 (1941)
• LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14 (Minn. 2012)
• Olson v. Robbinsdale Area Schools, No. Civ. 04-2707, 2004 WL 1212081 (D. Minn. 2004)
• Brown v. Wells, 288 Minn. 468, 181 N.W.2d 708 (1970)
• Nieshe v. Concrete Sch. Dist., 129 Wash. App. 632, 127 P.3d 713 (2005)
• Williams v. Austin Indep. Sch. Dist., 796 F. Supp. 251 (W.D. Tex. 1992)
• Eelkema v. Bd. of Educ. of City of Duluth, 215 Minn. 590, 11 N.W.2d 76 (Minn. 1943)
• Minnesota Voters Alliance v. Anoka-Hennepin Sch. Dist., 868 N.W.2d 703 (Minn. Ct. App. 2015)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/169j-20190514.pdf

Original opinion text

SCHOOL PUPILS: GRADUATION: FEES: Public schools are prohibited from denying students – who are eligible to receive their diploma – the opportunity to participate in graduation ceremonies due to unpaid meal debts.
169j
(cr.ref. 169x)

STATE OF MINNESOTA
OFFICE OF THE ATTORNEY GENERAL
102 STATE CAPITOL
ST. PAUL, MN 55155-1609
KEITH ELLISON
TELEPHONE: (651) 296-6197
ATTORNEY GENERAL

May 14, 2019

Mary Cathryn Ricker
Commissioner
Minnesota Department of Education
1500 Highway 36 West
Roseville MN 55113

Dear Commissioner Ricker:

Thank you for asking the Attorney General’s Office to provide a written opinion on whether denying a student’s opportunity to participate in graduation ceremonies or activities because of an unpaid meal debt violates state law. Pursuant to Minn. Stat. § 8.07 (2018), here is our response.

FACTS

You indicated that you have recently become aware that several Minnesota school districts have policies that restrict a student’s ability to participate in graduation ceremonies or activities when the student has an unpaid school meal debt owing to the school.

QUESTION

You have asked whether the practice of restricting a student from participating in graduation ceremonies or activities because the student has an outstanding school meal debt violates Minnesota statutes.

LEGAL ANALYSIS

In my opinion, public schools1 are prohibited under Minnesota statutes from denying students the opportunity to participate in graduation ceremonies due to unpaid meal charges. I base this opinion on both the Minnesota Public School Fee Law, Minn. Stat. §§ 123B.34-39, (the “Law”) and the Lunch Aid Law, Minn. Stat. § 124D.111, subd. 4.

1
“Public schools” refer to Minnesota public elementary and secondary schools; school districts; and charter schools that are all subject to the Public School Fee Law.
Toll Free Line: (800) 657-3787 • Minnesota Relay: (800) 627-3529 • Facsimile: (651) 297-4193 • www.ag.state.mn.us Printed on 30% Postconsumer Material Paper

Commissioner Ricker
May 14, 2019
Page 2

Minnesota Public School Fee Law:

“It is the policy of the state of Minnesota that public school education shall be free.” Minn. Stat. § 123B.35. The Minnesota Public School Fee Law explicitly provides:

No pupil’s rights or privileges, including the receipt of grades or diplomas may be denied or abridged for nonpayment of fees...

Minn. Stat. § 123B.37, subd. 2. The Law further provides:

Any practice leading to suspension, coercion, exclusion, withholding of grades or diplomas, or discriminatory action based upon nonpayment of fees denies pupils their right to equal protection and entitled privileges.

Minn. Stat. § 123B.35 (emphasis added). As discussed in more detail below, (1) a charge for a school-provided meal qualifies as a “fee” under the Law, and (2) the opportunity to participate in graduation ceremonies is covered by this Law, and is a privilege that cannot be denied because of outstanding meal balances.

First, a charge for a meal by a public school is a “fee” subject to the Public School Fee Law. Minn. Stat. § 123B.36, subd. 1(b) lists “authorized fees” that a public school may require payment, and subdivision 1(b)(6) authorizes: “fees specifically permitted by any other statute.” Both federal (see 42 U.S.C. § 1760(p)(2) – “each school food authority shall establish a price for paid lunches” served to students who are not certified to receive free or reduced price meals) and state (Minn. Stat. § 124D.111, subd. 4 – entitled “No fee” and restricts reminders for payment of meals) statutes authorize participating schools to charge a fee for meals for qualified students. In addition, subdivision 1(b)(5) in the list of authorized fees includes: “items of personal use or products that a student has an option to purchase…”, which can include a meal (a product) that the student has option to purchase.

Second, the Law applies to students’ participation in graduation ceremonies. While section 123B.37, subd 2 cited above expressly cites “grades or diplomas,” its use of the introductory term “including” means the statutory prohibition is not limited to those examples. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (stating that “the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”); LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14, 19 (Minn. 2012) (“The word ‘includes' is not exhaustive or exclusive”).

In general, many courts across the country have held that participation in a graduation ceremony does not constitute a constitutional property right in the same way as the right to

Commissioner Ricker
May 14, 2019
Page 3

receive a diploma or degree when one has met all academic requirements.2 Participation in graduation ceremonies is more likely a privilege,3 akin to participation in extracurricular athletic activities.4 See Olson v. Robbinsdale Area Schools, No. Civ. 04–2707, 2004 WL 1212081 *4 (D. Minn. 2004) (“Participating in a high school graduation ceremony with one’s own peers is, almost by definition, an unrepeatable event” and upholding a hearing officer’s conclusion that participation in the graduation ceremony with peers is an “important educational benefit.”). Accordingly, I conclude that participation in a graduation ceremony constitutes a benefit or privilege, for which public schools cannot deny or abridge for nonpayment of fees under section 123B.37, subd. 2.

Graduation ceremonies are significant events and a memorable way to celebrate the important achievement of graduation with families, fellow students, and teachers. Participation in graduation ceremonies is a privilege, and therefore, a public school cannot exclude a student from participating in the school activity based upon nonpayment of fees. Minn. Stat. § 123B.37, subd. 2. Moreover, this practice leading to exclusion or discriminatory action based upon nonpayment of fees denies students their right to equal protection and entitled privileges as provided by Minn. Stat. § 123B.35.

Lunch Aid Law:

In addition to the Public School Fee Law, public schools participating in the School Lunch Program under current Minnesota law are expressly prohibited from demeaning or stigmatizing students for outstanding student meal balances:

The [school] must also ensure that any reminders for payment of outstanding student meal balances do not demean or stigmatize any child participating in the school lunch program.

Minn. Stat. § 124D.111, subd. 4. Denying students the opportunity to participate in their school graduation due to nonpayment of meals is a reminder or message to others that would demean or stigmatize students. That is prohibited under Section 124D.111, subd. 4.

2
See Nieshe v. Concrete Sch. Dist, 129 Wash. App. 632, 645, 127 P.3d 713, 720, (2005); See also, Williams v. Austin Indep. Sch. Dist., 796 F.Supp. 251, 255 (W.D.Tex 1992). 3 “Privilege” is defined as “a right or immunity granted as a peculiar benefit, advantage or favor.” Merriam–Webster’s Collegiate Dictionary 936 (9th ed. 1983). Participation in a graduation ceremony due to successful completion of required coursework, examinations and all academic requirements is a benefit. 4 See Brown v. Wells, 288 Minn. 468, 181 N.W.2d 708 (1970) (membership in interscholastic sports teams is a privilege).

Commissioner Ricker
May 14, 2019
Page 4

In sum, schools retain the right to pursue legal collection action for unpaid fees. But public schools are prohibited from denying students - who are eligible to receive their diploma - the opportunity to participate in graduation ceremonies due to unpaid meal debts, under the Public School Fee and State School Lunch Aid Laws.

CONCLUSION

I understand that there is pending legislation to strengthen the enforcement, reporting and policies regarding school meals and lunch aid. I support that legislation. In the meantime, because we are in the midst of high school graduation season, I am issuing this Written Opinion that is binding on school officers unless overruled by a court. 5

Let me know if you have further concerns. Thank you for your concern for all students in Minnesota's public schools.

Sincerely,

KEITH ELLISON
Attorney General

1#4488342-v l

5
See, Minn. Stat. § 120A.10; Minnesota Voters Alliance v. Anoka-Hennepin Sch. Dist., 868 N.W.2d 703, 707, n.2, (Minn. Ct. App. 2015) (written opinion of the attorney general is "decisive" on all school matters until decided otherwise by courts.) See also, Eelkema v. Bd. of Educ. of City of Duluth, 215 Minn. 590, 593, 11 N.W.2d 76, 78, (Minn. 1943) (attorney general "opinion, though not binding on the courts, was, by statute law, binding upon school officers until overruled by the courts.")