Op. Atty. Gen. 169i (Cr. Ref. 169x)

SCHOOL PUPILS: EXCLUSION: FEES: Minnesota law prohibits schools or districts
participating in the federal school lunch program from providing an alternate meal not on the
scheduled menu to students with unpaid meal debt.
169i
(cr.ref. 169x)

November 17, 2022

Heather Mueller, Ed. D.
Commissioner
Minnesota Department of Education
400 NE Stinson Boulevard
Minneapolis, MN 55412

Re: Opinion Request – Alternate Lunches for Student Meal Debt

Dear Commissioner:

Thank you for your correspondence requesting an opinion from this Office pursuant to
Minnesota Statutes §§ 8.07 and 120A.10. You request an interpretation of Minnesota law related
to school menus. Specifically, you ask whether a policy of providing a meal that differs from the
scheduled menu to students with unpaid meal balances violates Minnesota laws that prohibit
differential treatment, lunch shaming or otherwise ostracizing the student for unpaid meal
balances.

In my opinion, providing an alternate meal based on meal debt violates Minnesota law.

BACKGROUND

You indicate that a number of public schools or districts across the state have adopted
policies whereby students with unpaid meal balances are denied lunch items from the scheduled
menu for the day. Students with unpaid meal balances are provided instead with what schools and
districts refer to as an “alternate meal,” a “minimum meal,” or a “courtesy meal.”

For example, one district’s policy states that students with an overdrawn account will be
offered an “alternate meal consisting of a cheese sandwich, piece of fruit and milk.” Another
district policy states that “until the negative balance is paid” students will receive a “minimum
meal” consisting of “a peanut butter or jelly sandwich and milk.” Some school policies simply
indicate the alternate meal will meet federal and state requirements.

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Heather Mueller, Ed. D.
November 17, 2022
Page 2

A review of school menus posted on the internet indicates that many, though not all,
schools and districts provide a variety of daily meal options each day.

QUESTION

Is providing alternate meals to students with unpaid meal debt permissible under Minnesota
Statutes, sections 124D.111 and 123B.34-123B.39?

ANSWER AND LEGAL ANALYSIS

No. Minnesota law prohibits schools or districts participating in the federal school lunch
program from providing an alternate meal, i.e. one that is not on the scheduled menu, to students
with unpaid meal debt. I first evaluate whether a policy of providing an alternate meal not on the
scheduled menu violates a Minnesota law (Minn. Stat. § 124D.111) that requires respectful
treatment of students regarding school lunch debt and prohibits limiting access to many aspects of
school life based on meal debt. I then evaluate whether alternate meal policies violate the
Minnesota Public School Fee law (Minn. Stat. §§ 123B.34-.39), which prohibits differential
treatment of students based on nonpayment of school fees or charges.

A. Respectful Treatment Regarding Meal Debt. The first law your letter references is
Minn. Stat. § 124D.111. Prior to changes to the law made in 2021, this statute provided simply
that schools and districts that participate in the school meals program must “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 (2020). In 2019, I
concluded that denying a student the opportunity to participate in graduation ceremonies due to
meal debt would demean or stigmatize the student in violation of this provision. Op. Atty. Gen.
169j (May 14, 2019) (attached).

Subsequent to that Opinion, the Legislature strengthened section 124D.111 by adding
subdivision 5(a), which requires:

Respectful treatment. (a) The participant [school or district] must also provide
meals to students in a respectful manner according to the policy adopted under
subdivision 1. The participant must ensure that any reminders for payment of
outstanding student meal balances do not demean or stigmatize any child
participating in the school lunch program, including but not limited to dumping
meals, withdrawing a meal that has been served, announcing or listing students'
names publicly, or affixing stickers, stamps, or pins. The participant must not
impose any other restriction prohibited under section 123B.37 due to unpaid student
meal balances. The participant must not limit a student's participation in any school
activities, graduation ceremonies, field trips, athletics, activity clubs, or other
extracurricular activities or access to materials, technology, or other items provided
to students due to an unpaid student meal balance.
Heather Mueller, Ed. D.
November 17, 2022
Page 3

Minn. Stat. § 124D.111, subd. 5(a).

Demeaning or Stigmatizing. Whether an alternate meal demeans or stigmatizes students
with meal debt is a somewhat fact-based determination that this Office generally declines to make.
See Op. Atty. Gen. 629-a (May 9, 1975). However, the examples of demeaning and stigmatizing
conduct provided in the statute (which are not an exclusive list) shed light on whether an alternative
meal is of the same character. Withdrawing or dumping a meal, publication of names of students,
“stickers, stamps, or pins” as enumerated in the statute constitute practices that bring negative
attention to a student based on meal debt.

An alternate or minimum meal could also bring negative attention, especially if alternate
or minimum meals are provided for no reason other than meal debt. If identifiable alternate meals
are provided only or primarily to students with outstanding meal debt, these students are clearly
identified among their peers as owing meal debt. As such, the practice would stigmatize a student.
Even if many other students are opting for an alternate meal, the student who has no choice in the
matter may, depending on the circumstances of how the meal is presented, feel demeaned or
stigmatized. For example, if some students ask for a peanut butter sandwich but students with
meal debt are simply given a peanut butter sandwich without the student expressing a choice, those
circumstances can be demeaning and stigmatizing for the student with meal debt.

Ultimately the determination of whether an alternate meal policy stigmatizes or demeans a
student is a factual determination, and the statute places you as Commissioner in the role of
determining whether a participant has violated subdivision 5(a). Minn. Stat. § 124D.111, subd.
5(b). I believe the appropriate inquiry regarding stigma is to determine whether the circumstances
under which alternate or minimum meals are provided brings negative attention to the student,
such as when only or primarily students with outstanding meal debt receive identifiable alternate
meals, or when it is apparent that students with meal debt have no choice in meal selection.

Prohibition on Access Limitations. Section 124D.111, subd. 5(a) also prohibits limiting
a student’s access to “any school activities, graduation ceremonies, field trips, athletics, activity
clubs, or other extracurricular activities or access to materials, technology, or other items provided
to students” due to meal debt. By providing an alternate or minimum meal, the school or district
denies access to the scheduled meal of the day based on meal debt. The list of school experiences
to which access may not be limited in the statute does not expressly include the scheduled menu.
However, “other items provided to students” is a catch-all category that could include the
scheduled menu.

Whether “other items provided to students” includes the scheduled menu requires statutory
interpretation. The first step in this endeavor is to determine if the phrase is unambiguous and can
be given its plain meaning, or is ambiguous, requiring statutory construction. State v. Vasko, 889
N.W.2d 551, 556 (Minn. 2017). Because “other items provided to students” is susceptible to more
than one reasonable interpretation, it is ambiguous.
Heather Mueller, Ed. D.
November 17, 2022
Page 4

Once ambiguity is determined, we turn to principles of statutory construction. Id. The
purpose of engaging in any statutory construction is to effectuate the intent of the Legislature.
Minn. Stat. § 645.16. The phrase must be given a meaning that is contextually appropriate. State
v. Friese, 959 N.W.2d 205, 211 (Minn. 2021). More specifically, the “word association” canon of
statutory construction provides that the meaning of doubtful words in a legislative act are
determined with reference to their connection to associated words and phrases. Id. at 213 (citing
State v. Seuss, 52 N.W.2d 409, 415 (Minn. 1952)). Words grouped in a list should be given related
meanings. Friese, 959 N.W.2d at 213.

In Minn. Stat. § 124D.111, subd. 5(a), “other items provided to students” directly follows
the words “materials” and “technology,” which suggests the phrase might be limited to curriculum-
related “other items” and not the scheduled menu. But the phrase is also associated – in the very
same sentence – with “any school activities, graduation ceremonies, field trips, athletics, activity
clubs, or other extracurricular activities.” Minn. Stat. § 124D.111, subd. 5(a). Because
extracurricular activities are included in the list of aspects of the educational experience that cannot
be limited based on school debt, the word association canon of construction requires that we not
interpret “other items provided to students” to include only curriculum-related items.

Another canon of construction is the presumption that the Legislature does not intend a
result that is absurd or unreasonable. Minn. Stat. § 645.17(1). It is hard to fathom that the
Legislature would prohibit limiting access to “athletics, activity clubs or other extracurricular
activities,” which are wholly unrelated to meal debt but allow schools to deny access to the
everyday public activity of receiving the service associated with the debt – a scheduled school
lunch. Denying access to the daily scheduled meal is arguably more likely to stigmatize a student
with meal debt than denying access to an optional extracurricular activity unrelated to the debt.
Given the clear intent of the Legislature to avoid stigma, and the expansive list of school
experiences to which access cannot be denied based on meal debt, I must conclude that the
Legislature intended to include the scheduled lunch for the day within the category of “other items
provided to students,” and to prohibit alternate lunch based on school debt.

Therefore, even if there is no actual stigma associated with an alternate meal, the broad
prohibition against limiting access to a wide variety of school activities includes access to the
scheduled menu as an “other item[] provided to students.” The practice of providing an alternate
meal based on meal debt, which denies access to the scheduled menu, thus violates Minnesota law.

B. Minnesota Public School Fee Law. The second law your letter references is the
Minnesota Public School Fee Law, Minn. Stat. §§ 123B.34-.39, which prohibits differential
treatment of students based on nonpayment of school fees or charges.

This law establishes the general policy that, “Any practice leading to . . . discriminatory
action based upon nonpayment of fees denies pupils their right to equal protection and entitled
privileges.” Minn. Stat. § 123B.35. In addition to this policy statement, the law contains a specific
prohibition: “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.
Heather Mueller, Ed. D.
November 17, 2022
Page 5

Application of this specific prohibition to the alternate meal policy, which denies access to
the scheduled menu, requires a determination of whether access to the scheduled menu constitutes
a “right or privilege.” Federal regulations require schools participating in the national school lunch
program to offer “nutritious, well-balanced and age-appropriate meals to all the children they
serve.” 7 C.F.R. § 210.10 (a)(1). These regulations require participating schools to follow a menu
planning approach and produce enough food “to offer each child the quantities specified in the
meal pattern.” Id. at § 210.10(a)(1)(i). The pattern requirements include a designated quantity of
a variety of foods each week. Id. at § 210.10(c).

Although your letter stipulates that the alternate meals meet federal nutrition requirements,
providing an alternate or minimum meal day after day until the debt is paid appears to me contrary
to the required variety reflected in the federal regulations. These menus are carefully designed to
meet federal nutrition requirements for a balanced diet, and I question the practice of providing
the same spartan meal every day as long as the debt is unpaid. However, a conclusive
determination whether access to the varied scheduled menu constitutes a right or privilege under
the Public School Fee law is unnecessary here in light of the conclusion above that an alternate
meal policy based on meal debt violates Minn. Stat. § 124D.111, subd. 5(a).

As Commissioner, you play a critical role in implementing the statutory requirement for
respectful treatment regarding meal debt, and I hope this analysis is helpful to you. Thank you for
the inquiry and concern for all students in Minnesota’s public schools.

Sincerely,

KEITH ELLISON
Attorney General

Encl: Op. Atty. Gen. 629a (May 9, 1975)
Op. Atty. Gen. 169j (May 14, 2019)

|#5343230-v3
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
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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.")