Op. Atty. Gen 169j

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.")