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.")
