This is with reference to your request for an opinion as to whether Zion Christian
School (ZCS) qualifies under Section 202(d)(7) of the Social Security Act as a school
that provides elementary or secondary education. At issue is the payment of benefits
to Laurie , a beneficiary who is enrolled at ZCS, but who studies at home due to a
In our opinion, it would not be legally supportable for the Social Security Administration
(SSA) to conclude that ZCS provides an education as determined under Wisconsin law
because ZCS does not meet all of the requirements under Wisconsin's compulsory school
attendance statute. As a result, ZCS cannot be recognized as an educational institution
(EI) for SSA purposes. The basis for our conclusion follows.
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. S 404.367(a) restates the statutory definition.
We do not believe that Wisconsin would recognize ZCS as a home-based educational program
or as a private school because ZCS does not provide education in accordance with Wisconsin
law. Our office has previously advised that a home-based educational program may qualify
as an EI under Wisconsin law for SSA purposes. See, e.g., OGC-V (M~) to RC-SSA-V (P~), "Full-Time Secondary Student Under Section 202(d)(7)
- Debra,," (SSN: ~), 9/29/88. However, in that case, the beneficiary was in a "home-based
private educational program," as defined at Wis. Stat. Ann. § 115.001(3g). The Wisconsin
statute defines home-based private educational program as follows:
"Home-based private educational program" means a program of educational instruction
provided to a child by the child's parent or guardian or by a person designated by
the parent or guardian. An instructional program provided to more than one family
unit does not constitute a home-based private educational program. (Emphasis added).
Wis. Stat. Ann. § 115.001(3g). In the present case, the beneficiary is not enrolled
in a home-based private educational program because ZCS is not a school designed to
provide education to one family unit. In fact, ZCS is a "private" school that has
eleven students enrolled. Further, there is no indication in the materials provided
to us that the beneficiary is tutored regularly by a parent or a teacher. Unlike a
home-schooling situation, it appears here that ZCS does not offer the beneficiary
educational instruction, although it does provide her with educational materials and
it counts her in its enrollment. Home-schooling cannot relieve a student of his or
her obligation to attend classes. Rather, home-schooling merely enables the student
to receive the required instruction in the home. Vis. Stat. Ann. §§ 118.15(4); 118.165(1).
Thus, Zion Christian School is not providing the beneficiary with a "home-based private
However, ZCS may still be considered an EI if it qualifies as a private school, as
defined at Wis. Stat. Ann. § 115.001(3r) and Wis. Stat. Ann. § 118.165(1). Wis. Stat.
Ann. § 115.001(3r) defines private school as follows:
"Private school" means an institution with a private educational program that meets
all of the criteria under s. 118.165(1) or is determined to be a private school by
the state superintendent under s. 118.167.
With respect to the latter requirement, we are aware of no information which indicates
that the state superintendent has determined that ZCS is a private school under Wis.
Stat. Ann. § 118.167. Further, contrary to what is required in the above statute,
ZCS does not "meet all of the criteria under s. 118.165(1)", and therefore, ZCS
cannot qualify as a private school.  Wis. Stat. Ann. § 118.165(1), provides:
(1) An institution is a private school if its educational program meets all of the
following criteria: (a) The primary purpose of the program is to provide private or
religious-based education. (b) The program is privately controlled. (c) The program
provides at least 875 hours of instruction each school year. (d) The program provides
a sequentially progressive curriculum of fundamental instruction in reading, language
arts, mathematics, social studies, science and health. This subsection does not require
the program to include in its curriculum any concept, topic or practice in conflict
with the program's religious doctrines or to exclude from its curriculum any concept,
topic or practice consistent with the program's religious doctrines. (e) The program
is not operated or instituted for the purpose of avoiding or circumventing the compulsory
school attendance requirement under s. 118.15(l)(a). (f) The pupils in the institution's
educational program, in the ordinary course of events, return annually to the homes
of their parents or guardians for not less than 2 months of summer vacation, or the
institution is licensed as a child welfare agency under s. 48.60(1). (Emphasis added).
We have not been provided with any information regarding whether ZCS meets all of
the above criteria. However, ZCS appears to be in violation of Wis. Stat. Ann. § 118.165(l)(e)
because the statute requires all private schools to operate in compliance with the
compulsory school attendance requirement at Wis. Stat. Ann. § 118.15(l)(a). Wis. Stat.
Ann. § 118.15(l)(a) provides:
(l)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is
excused under sub. (3) or has graduated from high school, any person having under
control a child who is between the ages of 6 and 18 years shall cause the child to
attend school regularly during the full period and hours, religious holidays excepted,
that the public or private school in which the child should be enrolled is in session
until the end of the school term, quarter or semester of the school year in which
the child becomes 18 years of age. (Emphasis added).
Thus, the Wisconsin compulsory school attendance statute requires that a child enrolled
in a private school must attend the school when it is in session. 
Further, as stated at Wis. Stat. Ann. § 118.165(1)(e), the program cannot be operated
for the purpose of avoiding or circumventing the compulsory school attendance requirement.
It does not appear to be sufficient that the beneficiary studies at home 24 hours
per week.  School attendance in Wisconsin is compulsory by statute for all children. Panitch v. State of Wisconsin 444 F.Supp. 320, 322 (E.D. Wis. 1977). Contrary to the requirements of the compulsory
attendance statute, the information you provided states that the main reason Laurie
left the public school system and enrolled at ZCS was because she was unable to attend
public school regularly due to her illness. Consequently, and in direct contradiction
with the requirements of Wis. Stat. Ann. § 118.165(1), a result of the beneficiary
choosing to attend ZCS is the circumvention of the compulsory school attendance requirement.
 Further, ZCS permitted the beneficiary to enroll without requiring her attendance
in class. Therefore, ZCS cannot be considered a private school, as defined at Wis.
Stat. Ann. § 118.165(1).
The Wisconsin compulsory education law has been reviewed in Wisconsin courts. As stated
above, the court has found that school attendance is compulsory by statute for all
children. Panitch v. State of Wisconsin, supra, 444 F.Supp. at 322. Likewise, the Attorney General for the State of Wisconsin
recently determined that, unless the correct statutory procedures were followed, the
parents of a child with exceptional educational needs could not remove their child
from his public school placement one day a week to attend a private education service.
Op. Atty. Gen. 18-90 (May 30, 1990)(attached). The Attorney General stated that "[i]f
the child is not attending the specified school during the full period and hours,
the compulsory education law is violated." Likewise, under Wisconsin law Laurie's
parent or guardian is required to seek approval from the school board if Laurie chooses
to pursue an unconventional form of education.
In our opinion, under the principles outlined in this opinion, the foregoing facts
establish that ZCS does not provide education recognized under Wisconsin's compulsory
attendance law. Therefore, we believe that Wisconsin would not recognize ZCS as a
home-based educational program or as a private school since the State may prosecute
Laurie's parent or guardian for failure to comply with the compulsory attendance requirement.
Thus, there is no adequate legal basis for SSA to conclude that ZCS is an EI for SSA
[I]n full-time attendance in a day or evening noncorrespondence course and  carrying
a subject load which is considered full-time for day students under the institution's
standards and practices, with scheduled attendance at the rate of at least 20 hours
per week and a course of study which is at least 13 weeks in duration.