By memorandum dated December 3, 1990, you asked us: (1) whether home schooling in
Ohio qualifies under section 202(d)(7) of the Social Security Act as a school that
provides elementary or secondary education as determined under the law of the state
of Ohio; and (2) if so, what are the minimum requirements under Ohio law.
In our opinion, under Ohio law home schooling in Ohio qualifies as an elementary or
secondary education under section 202(d)(7) where parents obtain the written approval
of the local superintendent of schools pursuant to Ohio Revised Code. R.C. 3321.04(A)(2),
or the approval of a county juvenile judge on appeal pursuant to Ohio Revised Code,
R.C. 3331.08. The actions of the local superintendent or the court are conclusive;
a parent cannot establish that a home schooling program meets the minimum educational
requirements under state law absent the written approval of one of them. Approval
by the local superintendent or the court, on the other hand, establish that the minimum
education requirements under state law are met, and the Social Security Administration
need make no further inquiries.
This answer affects benefits to beneficiaries in two separate families, the S~s in
Canton, Ohio, and the S~ in Fremont, Ohio. You have submitted evidence that both families
have received the approval of their local school superintendents. The S~ and S~ children
are therefore being provided an elementary or secondary education under Ohio state
law.
The basis for our conclusions follows.
DISCUSSION
Section 202(d)(7)(C)(i) of the Social Security Act states:
An "elementary or secondary school" is a school which provides elementary or secondary
education, respectively, as determined under the law of the State or other jurisdiction
in which it is located.
Ohio courts and the Ohio Attorney General refer to Ohio's compulsory education law,
which permits home schooling where certain requirements are met, in order to determine
when home schooling provides an elementary or secondary education under Ohio state
law.
Ohio's compulsory education law is contained in the Ohio Revised Code at R.C., Chapter
3321. Section 3321.04, "Compulsory attendance," states at R.C. 3321.04(A)(2):
Excuses from future attendance at or past absence from school or a special education
program may be granted for the causes, by the authorities, and under the following
conditions:
(A) The superintendent of schools of the city, exempted village, or county school
district in which the child resides may excuse him from attendance for any part of
the remainder of the current school year upon satisfactory showing of either of the
following facts:
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(2) That he is being instructed at home by a person qualified to teach the branches
in which instruction is required, and such additional branches, as the advancement
and needs of the child, may, in the opinion of such superintendent, require. In each
such case the issuing superintendent shall file in his office, with a copy of the
excuse, papers showing how the inability of the child to attend school or a special
education program or the qualifications of the person instructing the child at home
were determined. All such excuses shall become void and subject to recall upon the
removal of the disability of the child or the cessation of proper home instruction;
and thereupon the child or his parents may be proceeded against after due notice whether
such excuse be recalled or not.
Where a superintendent of schools refuses to excuse a child from attendance at school
for a reason contained in R.C. 3321.04, R.C. 3331.08 provides in relevant part that:
[A]n appeal may be taken from such decision to the juvenile judge of the county, upon
the giving of bond, within ten days thereafter, to the approval of such judge, to
pay the costs of appeal. His decision in the matter shall be final.
There have been no changes in these provisions since 1976.
These provisions have been consistently upheld by the Ohio courts. For example, in
State v. Schmidt, 29 Ohio St.3d 32, 505 N.E.2d 627 (1987), cert denied., Schmidt v.
Ohio, 484 U.S. 942, 108 S.Ct. 327 (1987), the Ohio court upheld the requirement of R.C.
3321.04(A)(2) that parents apply to the local superintendent of schools for approval
of a home education program against a challenge that the requirement violated the
free exercise of religion. The court further held that the requirement is neither
vague nor an improper delegation of authority.
Similarly, in Akron v. Lane, 65 Ohio App.2d 90, 416 N.E.2d 642 (1979), the Ohio court found that a parent cannot
defend a prosecution based upon the compulsory education laws if he has failed to
obtain the approval of the district superintendent of schools for home instruction
pursuant to R.C. 3321.04(A)(2) and failed to appeal to the Juvenile Court pursuant
to R.C. 3331.08.
R.C. 3321.07 establishes that instructional programs outside the public schools, including
home schooling as well as private schools, must provide hours and term of attendance
that are equivalent to the hours and term of attendance required of children in the
public schools of the district. The Ohio Attorney General has clarified that, in determining
whether or not to approve a child from public school under the provisions of R.C.
3321.04(A)(2), the local superintendent of schools must make a judgment that the program
of home education proposed for the child will satisfy all applicable requirements,
such as those included in R.C. 3321.07. OAG No. 79-056. However, the court in Akron v. Lane, supra, specifically held that R.C. 3321.04(A)(2) did not authorize an exception
to the compulsory education laws where the parents only establish equivalency between
home instruction and public education. Thus, under Ohio law, a parent cannot merely
establish that a home schooling program meets the minimum educational requirements
under state law, but must instead obtain the written approval of the local superintendent
of schools or the county juvenile court on appeal. 1/ Approval by the local superintendent
or the court, on the other hand, includes a determination that the minimum education
requirements under state law are met.
Here, you have submitted materials involving two Ohio families, the S~s in Canton,
Ohio and the S~ in Fremont, Ohio.
With regard to the S~s, the Superintendent of the Canton City Schools advised the
parents by letter dated August 24, 1990 that "you have followed correct procedure
in notifying us of your intention to instruct your children, James W. S~ (1lth) and
Holly A. S~ (12th), at home." In addition, the Canton City Schools gave SSA the same
information by letter dated October 18, 1990. The file contains a copy of the optional
"Home Education Notification Form" that the S~s submitted to the superintendent, with
an attached curriculum outline, an assurance that each child will be provided a minimum
of nine hundred hours of home education each school year, and a statement of teacher
qualifications. In the context of the materials submitted, these notices constitute
evidence that the local school superintendent has excused the S~ children from school
attendance on the basis of attendance at an adequate home school program as required
by R.C. 3321.04(A)(2). We therefore conclude that the S~ children are being provided
an elementary or secondary education under Ohio state law.2/
With regard to the S~, the Superintendent of the Fremont City Schools advised the
parents by letter dated August 30, 1990 that "Approval is granted for your children,
Sarah, Joshua, Caleb, Hannah, Abigail, Israel, and Judah, to be excused from regular
school attendance for the 1990-01 school year based upon receipt from you of a completed
home education notification form designed to comply with Chapter 3301-34 of the Ohio
State Board of Education and RC 3321.04 regarding home education; and appropriate
academic assessment reports." In our opinion, this notice constitutes satisfactory
evidence that the local school superintendent has excused the S~ children from school
attendance on the basis of attendance at an adequate home school program as required
by R.C. 3321.04(A)(2). We therefore conclude that the S~ children are being provided
an elementary or secondary education under Ohio state law. 3/
1/ This is unlike the situation in other states we have previously considered, such
as Illinois and Indiana.
2/ As a separate matter, SSA must also determine that the claimant is a "full-time
student." You have submitted to us a document that appears to be proposed Home Schooling
Manualized Instructions to be contained at POMS RS00205000. This document requires
SSA to establish that the student is in fulltime attendance, but does not specify
whether this information must be obtained from the school district or the family.
The S~s have submitted attendance sheets to SSA that confirm attendance consistent
with the assurance they gave to the superintendent that a minimum of nine hundred
hours of home education would be provided during the school year. In our opinion,
this information provided by the S~ family is adequate evidence of full-time attendance
for SSA purposes.
3/ With regard to the separate question of whether a particular child is in full-time
attendance, you have determined that the school district does not keep records or
verify the parents' assurance unless there is suspected abuse. As described in footnote
two above, however, in our opinion information from the family can be adequate to
establish compliance with this requirement. There is an October 31, 1990 report of
contact in the file that describes some 20-30 hours of study each week (3-5 hours
each morning and 2-3 hours or more some afternoons), but it is not clear to us if
this information is based on the parents' assurance or is based on actual practice
by the family. We therefore recommend that you obtain corroborating information from
the family regarding hours of attendance before finally resolving the question of
full-time attendance by the S~ children.