The State of Ohio recognizes home schooling under its compulsory education law. The parent or guardian of a home-schooled child must give certain information to the superintendent of the city or exempted village school or the educational service center in which the child resides. The superintendent must approve and file a copy of the excuse from attendance at a school or special education program.

It is not sufficient for a parent to maintain that the home school education is equivalent to that being provided in the public schools if the parent applied to, but did not receive, the approval of the superintendent and failed to appeal the denial to Juvenile Court.

If a child alleges a home school situation, ask the parent(s) to provide written approval of the home school from the local superintendent of schools or the juvenile judge of the county to establish that minimum education requirements under state law are being met. The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

Ohio requires the parent, guardian or other person having charge or care of the child of compulsory school age to send the child to school or a special education program that conforms to the minimum standards prescribed by the state board of education for the full time of the session, which cannot be less than 32 weeks per school year. ORC 3321.04. A child of compulsory school age is between the ages of 6 and 18, or a child under the age of 6 who has been enrolled in kindergarten, unless the child has been withdrawn from kindergarten after consultation with the child's teacher and principal. ORC 3321.01(A).

A child may be excused from future attendance at or past absence from a school or special education program if the child is being instructed at home subject to certain conditions and the approval of the superintendent of the city or exempted village school district or the educational service center in which the child resides. ORC 3321.04(A) and 3321.04(A)(2). Home instruction must be by a person qualified to teach in the branches of required instruction and any additional branches the needs of the child may warrant as determined by the superintendent. ORC 3321.04(A)(2). In home school situations, the superintendent approving the excuse must file in his or her office, a copy of the excuse along with papers showing how the qualifications of the person providing the home instruction were determined. ORC 3321.04(A)(2). The home school excuse becomes void upon the cessation of proper home instruction. Id.

Additionally, the parent or guardian of a home schooled child must supply certain information to the superintendent. OAC 3301-34-03(A).

The parent must supply: (1) the school year in which the notification (of intent to home educate) is made;

(2) the name and address of the parent;

(3) the name and address of the person(s) who will be teaching the child the subjects to be listed below;

(4) full name and birth date of the child to be home educated;

(5) assurance that the home education will include the following, excepting any concept, topic or practice that conflicts with the sincerely held religious beliefs of the parent: language, reading, spelling and writing; geography, history of the United States and Ohio, and national, state and local government; mathematics; science; health; physical education; fine arts, including music; and first aid, safety and fire protection;

(6) a brief outline of the intended curriculum for the current year;

(7) a list of textbooks, correspondence courses, commercial curricula and other basic materials the parent intends to utilize in the home education;

(8) assurance that the child will be given at least 900 hours of home education each school year;

(9) assurance that the home teacher has one of the following qualifications: a high school diploma or the certificate of high school equivalence or standardized test scores demonstrating high school equivalence or other equivalent credentials found appropriate by the superintendent, or, lacking any of these, the home teacher must work under the direction of a person with an undergraduate degree from a recognized college until the child's test results demonstrate reasonable proficiency or until the home teacher obtains a high school diploma or certificate of equivalence;

(10) a signed affirmation that the information supplied is correct.

Courts have upheld the requirement that a parent wishing to home school his or her child must apply to the superintendent for approval of the program. See State v. Schmidt, 29 Ohio St.3d 32, 505 N.E.2d 627 (1987). Additionally, it has been judicially determined that it is not sufficient that a parent maintain that the home education being provided is equivalent to that being provided in the public schools, if the parent applied to but did not obtain the approval of the superintendent and failed to appeal the denial to Juvenile Court. See Akron v. Lane, 65 Ohio App. 2d 90, 416 N.E.2d 642 (1979). On the other hand, superintendent approval is conclusive evidence of a home school's compliance with the minimum education requirements of Ohio. Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Requirements For Home Schooling In Ohio To Be A School Under Section 202(d)(7) Of The Social Security Act, at 3 (March 1, 1991).

The State of Ohio recognizes home schooling of an elementary or secondary level school student under its compulsory education law.

If the student alleges a home school situation, ask the parent(s) to provide written approval of the home school from the local superintendent of schools or the juvenile judge of the county to establish that minimum educational requirements under state law are being met.

The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

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.