By memorandum dated March 23, 1990, you asked us for an opinion on whether Christian
Liberty Academy (CLA) meets the definition of an "educational institution (EI)" set
out in the Program Operations Manual System (POMS) at RS 00205.200. As you know, this response affects payment of benefits to a beneficiary. In our
opinion, since Christian Liberty Academy appears to meet all of the requirements under
Illinois's compulsory education law, it is legally supportable for SSA to conclude
that Christian Liberty Academy provides an education as determined under State law.
That is, CLA can therefore be recognized as an educational institution (EI) for SSA
You may wish to ask your central office to add additional guidance to the relevant
POMS sections consistent with our advice. We will be asking the central office of
OGC for similar clarification of the POMS sections.
Section 202(d)(7)(c)(i) of the Act states that:
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.
20 C.F.R. 404.367(a) restates the statutory definition.
In setting forth SSA's policy in this area, POMS RS 00205.200, titled "What Is An EI — Policy" says:
An EI is a school that provides elementary or secondary education, as determined under
the law of the State or other jurisdiction in which it is located.
Assume, unless there is some indication to the contrary, that the following schools
in the U.S. are EI's:
POMS RS 00205.250 A.2 states that "If the student indicates the type of school is a high school, accept
the allegation unless there is information or knowledge to the contrary." The POMS
section continues with procedures to determine the EI status of a school. First, POMS
RS 00205.250 B.1 requires determining that the institution is a school. The requirements outlined
in the POMS section for a school include that the school is directed towards a specific
educational objective, such as a diploma; hires individuals primarily to teach; and
uses formal teaching materials and facilities.
Here, CLA maintains a program that is directed toward a diploma, hires individuals
primarily to teach, and uses formal teaching materials. However, in addition to its
main campus in Arlington Heights, Illinois, CLA provides curriculum and other resources,
with systematic supervision, testing, and recordkeeping, to numerous students nationwide
who are enrolled on an "extension" or "satellite" basis. That is, CLA assists parents
or others in the provision of home or church education. Your inquiry involves a beneficiary
who attends school at home rather than at the main campus, and who appears to be taught
by parents rather than by individuals hired primarily to teach, although "school coordinators"
make periodic visits. We assume that community facilities are available and are used
to supplement the home activities where necessary.
The POMS section does not direct that the question of whether or not an institution
is a school should be sent to the chief regional counsel if the answer is not clear.
In our opinion, however, there is no reason SSA should not seek legal advice in resolving
this question. Once SSA determines that an institution is a school, POMS RS 000205.250
B.2 next requires a multi-step process to determine if the school provides elementary
or secondary education as determined under State law. Where the school has not applied
for or received accreditation from the State and the State Department of Education
cannot state that the school provides an approved elementary or secondary program,
the POMS section directs that the case be submitted to the chief counsel in the region
to determine if the school qualifies as an EI under the State or other local jurisdiction.
The answer to the first question of whether or not an institution is a school is,
in many cases, inextricably linked to the subsequent question of whether or not education
as determined under State law is provided. State law governing whether or not education
is provided often also raises and answers the question of whether or not there is
a school for State law purposes. We therefore think that the assistance of the chief
regional counsel in resolving both questions under State law is appropriate.
Here, in our opinion CLA would be determined under Illinois State law both to be a
school and to provide education that is recognized under Illinois State law. Although
we have uncovered no OGC precedents that consider whether home education qualifies
as an EI under State law for SSA purposes, there is no question that home education
that meets certain requirements may satisfy the requirements of Illinois's compulsory
education law. People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950). Moreover, it is clear under OGC precedents that
it is legally supportable for SSA to conclude that, if education is provided that
appears to meet all of the requirements under the State's compulsory education law,
education that is recognized under State law is provided and SSA can therefore find
an educational institution (EI) for SSA purposes.
We have found two prior legal opinions that address the question of whether an institution
that has not been affirmatively accredited by the State in which it is located can
qualify as a secondary school as defined in the Social Security Act and regulations.
OGC-VIII (Luedemann and Blair) to RC-SSA-VIII, "Status of the Northwest Indian Bible
School as an Educational Institution," January 26, 1990; OGC-SS (Woolford) to Office
of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes
of Student Benefits," May 12, 1986. Both opinions conclude that it is legally supportable
to conclude that for SSA purposes an "educational institution (EI)" need not be affirmatively
accredited or approved by the State. Both opinions also conclude that if a nonpublic
school appears to meet all of the requirements under the State's compulsory education
law, the school can be found to provide education that is recognized under State law.
It is therefore legally supportable for SSA to conclude that the school provides education
as determined under State law and is thus an educational institution (EI) for SSA
purposes. Although neither opinion arose in the context of home education, the reasoning
of those opinions would also appear to be applicable to an organized course of home
education that meets all of the requirements of the State's compulsory education law.
Both prior legal opinions are consistent with the POMS sections, described above,
that express a strong presumption that a school is an EI if it is identified as one.
Moreover, if the absence of accreditation always prevented finding an EI, there would
be no reason for referring cases without State approval or accreditation to the chief
counsel for a determination.
The May 1986 OGC opinion involved the Calvary Baptist School in Indiana. The author
appeared to be familiar with the Region's prior policy statements involving Indiana.
A December 1985 memorandum from the Regional Commissioner states that 'Christian schools
in Indiana cannot meet the definition of an determines that they are schools which
provide at least a secondary level of education... As long as the State of Indiana
declines to make such a determination, the schools are not EI's." To similar effect,
a January 1986 program circular states that "only those high schools that the State,
or other jurisdiction, considers to be a high school will be EIs" and that "without
State recognition as a school that provides an elementary or secondary level of education,"
a private religious high school will not be considered to be an educational institution
While recognizing that the nonpublic school was not approved or accredited by the
Indiana Department of Education, the May 1986 OGC opinion refers in addition to the
State's definition of a school for purposes of the State's compulsory attendance law.
Two sections of that law are relevant. First, Ind.Code § 20-8.1-3-34 provides for
criminal prosecution if a parent fails to send a child to a public school or otherwise
provide "instruction equivalent to that given in the public schools." Second, Ind.Code
§ 20-8.1-3-17 requires all nonpublic schools to teach in the English language and
to be in session for at least the number of days public schools are in session. The
OGC opinion notes that "the mere fact that the State did not choose to prosecute the
claimant or his parents" does not, in and of itself, justify finding that the school
satisfies the requirements of Indiana's compulsory attendance laws. Rather, there
must be an inquiry that looks at all the relevant facts of the case.
The May 1986 OGC opinion concluded that the facts established that the Calvary Baptist
School provided instruction equivalent to that given in the public schools — even
though the school never sought or received accreditation. Since the school therefore
satisfied the requirements of Indiana's compulsory attendance law, the OGC opinion
found that it is legally supportable for SSA to conclude that the school "provides
a[n] ... education as determined under the law of that State and therefore can be
recognized as an approved school" for SSA purposes. 
A similar analysis involving Montana's compulsory attendance law was performed in
the January 26, 1990 opinion involving Northwest Bible School. Again, OGC concluded
that the facts supported concluding that the school's instructional program would
satisfy the State's requirements for a school under the compulsory attendance law
— even though the school had never sought or received accreditation and the State
had never actually addressed whether that particular school provided education that
satisfied its compulsory attendance law. Therefore, SSA could properly conclude that
the school was an EI.
The May 1986 OGC opinion suggested that under POMS it might be a serious defect if
SSA failed to obtain an opinion from the State regarding a school's compliance with
the State's compulsory education laws, but did not clearly resolve the question since
there was arguably a State opinion present in that case. The more recent January 1990
OGC opinion, however, suggests that it is acceptable for SSA (or the chief regional
counsel) to independently evaluate the school's compliance with the State's compulsory
education law based on a factual analysis of the relevant factors under State law.
In our opinion, it is appropriate for the chief regional counsel to make the determination
under State law in the absence of a State opinion.
The Social Security Act and the regulations refer to "education ... as determined
under the law of the State ... in which it is located." Section 202(d)(7)(C)(i) of
the Act; 20 C.F.R. 404.367(a). There is no reference in the Act or the regulations
to a determination actually made by the State itself. Where similar language is used
elsewhere in the Act, SSA routinely asks for guidance from the chief regional counsel
or refers to already-established precedents. The relevant POMS section, RS 00205.250 B.2, requires submittal of the case to the chief regional counsel for a determination
under State law only after SSA has been unable to ascertain from the State if an approved
education program is provided. Therefore, under POMS SSA should first seek a State
opinion. If, however, a State opinion cannot be obtained, it is appropriate to seek
a determination under State law from the chief regional counsel.
Applying such an analysis under Illinois's compulsory attendance law to Christian
Liberty Academy (CLA), under the principles outlined in the prior OGC opinions, in
our opinion it is legally supportable for SSA to conclude that CLA provides education
recognized under Illinois's compulsory education law. Therefore it is legally supportable
for SSA to recognize CLA as an educational institution (El).
The Illinois compulsory education law is contained at Ill.Rev. St. Ch. 122, Sec. 26-1
to 26-9. Under Sec. 26-1(1), children are not required to attend a public school if
instead they attend "a private or a parochial school where children are taught the
branches of education taught to children of corresponding age and grade in the public
schools, and where the instruction of the child in the branches of education is in
the English language." Such a private or parochial school need not be accredited or
approved by the State.
The Illinois compulsory education law has been reviewed in Illinois courts. In People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950), the court found that the term "private school"
extends to a place where instruction is imparted to the young without regard to the
number of persons being taught. The court evaluated whether or not there was "an adequate
course of instruction in the prescribed branches of learning." 90 N.E.2d at 215. The
L~ case involved home schooling.
The L~ case was subsequently described as follows in the case of People v. Harrell, 34 Ill.App.2d 205, 180 N.E.2d 889 at 890 (1962):
Our Compulsory School Law, Ill.Rev. St. Ch. 122, Sec. 26-1 to 26-9, has received a
liberal construction in Illinois courts. The term "private school" as a lawful substitute
for public schooling has been extended to include home schooling, where the teacher
is competent, the required subjects are taught, and the child receives an education
at least equivalent to public schooling.
Both the L~ and H~ courts found that parents who seek to establish compliance with the Illinois compulsory
education law have the burden of establishing that education "at least commensurate
with the standards prescribed for the public schools" is provided. L~, 90 N.E.2d at 215; H~, 180 N.E.2d at 891.
In a related context, an attorney from the Illinois State Board of Education advised
a Regional Superintendent of Schools that while the State does not approve private
schools, under L~, "the question ... is whether a pupil in a home school setting is receiving educational
services in compliance with the compulsory attendance law." Illinois State Board of
Education ~) to Regional Superintendent of Schools (~, January 6, 1988.
Christian Liberty Academy (CLA) is a nonpublic school. Accreditation of nonpublic
schools in Illinois is voluntary and CLA has not applied for or received accreditation
by the State of Illinois Department of Education.
The tax exempt status granted by the Illinois Department of Revenue is based on its
status as "a religious and educational institution known as Church of Christian Liberty.
Christian Liberty Academy does not have separate tax exempt status as an educational
institution. Moreover, CLA will not complete any school attendance or school certification
forms on behalf of any of its students.
CLA makes its home schooling program available to families for a fee. The program
includes an organized curriculum and instructional materials, and regular visits from
"school coordinators" that are supervised and monitored by CLA's central administration.
CLA states that all its tutors are qualified and subject to administrative supervision
and monitoring, but these tutors appear to be all parents without regard to educational
background or qualification. CLA's home schooling program, like the program at its
main campus, is directed toward a diploma. CLA provides systematic supervision, testing,
and recordkeeping to its home students. The school year for home and other CLA students
appears to be comparable to that of the public schools. It appears that some, but
not all, universities accept credits from CLA.
In our opinion, under the principles outlined in the prior OGC opinions, the L~ case, and the interpretation of the L~ case by an Illinois State Board of Education attorney, the foregoing facts establish
that CLA would be found to provide education recognized under Illinois's compulsory
attendance law. That is, the State would not prosecute parents for sending their children
to CLA in lieu of an actually approved or accredited school.  Under the OGC opinions, this provides adequate legal basis for SSA to conclude that
CLA is an educational institution (EI) for SSA purposes.
You may wish to suggest to your central office that the relevant POMS sections be
clarified to reflect the advice given in this opinion. Although the POMS suggests
referring each case to the chief counsel for an opinion based on the individual facts
presented, if there are considerations of general applicability that apply in each
case it might be helpful to describe them in POMS. We are sending a copy of this memorandum
to the central office of OGC with a similar recommendation that the relevant POMS
sections be clarified.
You may also wish to consider issuing additional policy guidance regarding Illinois
that reflects the advice given in this opinion.