PR 08005.017 Indiana

A. PR 11-116 Clarification of Home Schooling Requirements in Indiana

DATE: June 16, 2011

1. SYLLABUS

Indiana law pertinent to how many hours per day a home school instructor teaches has changed, and this opinion modifies PR 02-096 (1/31/01), PR 01-230 (11/8/01), and PR 00-015 (1/31/01).

The Indiana Department of Education (DOE) clarified on its official website that, although home schools must operate for 180 days per year, a home school teacher may decide how many hours to teach per day.  Because the Indiana DOE, which is a public agency that oversees education in the state, published guidance that allows home school instructors discretion to decide the number of hours to teach each day, it seems unlikely that a court would require a certain number of hours of instruction per day in home schools. SSA, therefore, believes that it is reasonable to defer to the Indiana DOE’s interpretation of compulsory education laws, and that this represents a change of position within the meaning of POMS GN 04001.100.  SSA need not require home schools to provide instruction for 6 hours a day to satisfy state law.

Going forward, the following requirements apply to home schools in Indiana:

  • The school must teach in the English language;

  • The school must operate for at least 180 days per year;

  • The school must keep an accurate daily attendance record for each student; and

  • The home school must provide the child with instruction equivalent to that provided in public schools.

Indiana home schools do not require:

  • Testing of home school students;

  • That home school teachers have certain educational credentials;

  • A particular curriculum and, in fact, exempt home schools from curricular requirements imposed on public schools; or

  • Home school programs to operate on specific days or for a specific amount of time each day.

2. OPINION

In doing research for a recent request for a legal opinion, we discovered that the Indiana Department of Education (DOE) has apparently interpreted the home schooling law a little differently from how we had interpreted it in some of our prior legal opinions. Specifically, we had previously advised that home schools must operate for 180 days per year, for at least 6 hours on each of those days (for grades 7 through 12). See POMS PR 08005.017. However, the Indiana DOE has clarified on its website that, while a home school must operate for 180 days per year, a home school teacher can decide how long to teach each day.  While our prior interpretation of state law was reasonable, we believe it would be reasonable, going forward, to follow the interpretation of the Indiana DOE.

Discussion

We previously advised that, based on compulsory attendance laws, home study programs in Indiana must operate for 180 days per year and for 6 hours on each of those 180 days. POMS PR 08005.017 (PR 01-230, PR 00-015). This advice was based on Indiana’s compulsory school attendance law, which requires that a student “shall attend school each year for the number of days public schools are in session.” See Ind. Code § 20-33-2-5 (2011) (until 2005, codified at Ind. Code § 20-8.1-3-34 (2004)). In Indiana, public schools are required to “conduct at least one hundred eighty (180) student instructional days.” Ind. Code § 20-30-2-3 (2011) (emphasis added) (until 2005 codified at Ind. Code § 20-10.1-2-1(c) (2004)). “Student instructional days” is a term of art in Indiana law defined as at least 5 hours of instructional time for grades one through 6, and at least six 6 hours a day for grades 7 through 12. Ind. Code § 20-30-2-2(a) (2011) (until 2005, codified at Ind. Code § 20-10.1-2-1(b) (2004)).

We recently discovered, however, that the Indiana DOE has clarified on its official website that, while home schools must operate for 180 days per year, the home school instructor can decide “how long to teach each day.” Ind. Dep’t of Educ., Indiana Homeschool Help Sheet, http://www.doe.in.gov/sservices/homeschool/helpsheet.html (hereinafter “DOE Help Sheet”) (last visited June 15, 2011). This seems like a reasonable interpretation of state law. 

In the compulsory education statute, the legislature referred only to the “number of days public schools are in session,” not more specifically to the “number of student instructional days” public schools are in session. See Ind. Code § 20-33-2-5 (2011) (until 2005, codified at Ind. Code § 20-8.1-3-34 (2004)).  Furthermore, compulsory attendance laws may subject juveniles to delinquency petitions and parents to criminal charges,  See Ind. Code §§ 31-30-1-3(4), 31-37-2-3; J.L. v. Indiana, 789 N.E.2d 961 (Ind. App. 2003); Mazanec v. N. Judson-San Pierre Sch. Corp., 552 F. Supp 873, 874 (N. D. Ind. 1982) (noting criminal prosecution was brought against parents under compulsory school attendance law). and criminal statutes are generally construed narrowly. See Mask v. Indiana, 829 N.E.2d 932, 936 (Ind. 2005) (“[C]riminal statutes [must] be strictly construed against the state.”). Since the Indiana DOE, a public agency that oversees education in the state, has published guidance that states that home school instructors have discretion to decide how long to teach each day, it seems unlikely that a court would require home schools to provide instruction for a certain number of hours per day. The Indiana DOE plays a significant role in compulsory education matters in that state. See, e.g., Ind. Code § 20-33-2-20(c) (state superintendent and local superintendent are the only individuals authorized to inspect private school attendance records). Therefore, we believe it is reasonable to defer to that agency’s interpretation of compulsory education laws.

We believe this approach would represent a change of position, within the meaning of POMS GN 04001.100. The policy currently stated in the POMS was ostensibly correct and reasonable when made, and this change of policy is the result of subsequent clarifications of the law in the state.  Therefore, going forward, we believe SSA should consider the following requirements for home schools in Indiana:

  • The school must be “taught in the English language.” Ind. Code § 20-33-2-4.

  • The school must operate for at least 180 days per year. Ind. Code §§ 20-30-2-2, 20-33-2-5; DOE Help Sheet, supra.

  • The school must keep an accurate daily record of the attendance of each student.  Technically, the school needs to provide these records only for each student who is subject to compulsory school attendance.  Ind. Code § 20-33-2-20. A student is not bound by the compulsory attendance laws in Indiana once he or she becomes 18 years of age. Ind. Code. § 20-33-2-6(2).  However, SSA policy states that home schools must comply with state law for the child to be entitled as a student even if the child is beyond the state’s compulsory education age. POMS RS 00205.275(B) (see “IMPORTANT” note in section). 

  • Id. at 20-33-2-20; DOE Help Sheet, supra.

  • The child must be “provided with instruction equivalent to that given in public schools.” Id. at 20-33-2-28. At the same time, a nonpublic, non-accredited school, including a home school, is not bound by the requirements of Indiana school laws as they pertain to “curriculum.” Ind. Code § 20-33-2-12.  We have previously advised that the state would likely find equivalent instruction as long as the curriculum seems reasonable. POMS PR 08005.017 (PR 01-230).

Indiana home schools need not meet the following:

  • The State does not require testing of home school students. See DOE Help Sheet, supra.

  • The State does not require home school teachers to possess certain educational credentials.  Id.

  • The State does not require home schools to follow any particular curriculum and exempts home schools from curricular requirements imposed on public schools. Id.; see also Ind. Code § 20-33-2-12.

  • While the school must provide 180 days of instruction per year, home school programs need not operate on specific days or for a specific amount of time each day. See DOE Help Sheet, supra. Thus, the Indiana DOE also does not appear to require a 9-month school term, as was suggested in a prior legal opinion. See POMS PR 08005.017 (PR 01-230).

CONCLUSION

In sum, we believe it would be appropriate, going forward, to apply the less-stringent requirements for home schools published by the Indiana DOE.  Specifically, SSA need not require that home schools provide instruction for 6 hours a day in order to satisfy state law. 

Donna L. C~
Counsel Chief Counsel, Region V

By: _______________________
Jason S~
Assistant Regional Counsel

B. PR 02-096 Qualifications for Home Schools Under the Laws of the Six States in Region V

DATE: January 31, 2001

1. SYLLABUS

Indiana permits home schooling provided the child receives instruction equivalent to that furnished in public schools. Indiana law requires 5 hours per day of instruction for grades 1 through 6 and 6 hours per day for grades 7 through 12. A school year must include at least 180 days of instruction.

A parent or guardian home school instructor should submit evidence to prove that the home school program provides an education equivalent to that offered in the public schools.

2. OPINION

You have requested information regarding the educational institution (EI) requirements for each state in the Chicago region. Section 202(d)(7)(c)(i) of the Social Security Act defines an elementary or secondary school as a school which provides elementary or secondary education, respectively, as determined under the law of the state in which it is located. This definition also appears in 20 C.F.R. § 404.367 which addresses the federal full-time attendance requirement for student benefits. 20 C.F.R. § 404.367(a)(1) provides that a student is instructed in an elementary or secondary education at home if such education is provided in accordance with the home school laws of the state in which the student resides. The Program Operations Manual System (POMS) provides that a home schooled child is eligible for student benefits if the student meets the federal standards for full-time attendance[1] , the law of the state in which the home school is located recognizes a home school as an EI, and the home school attended by the student meets the requirements of the state laws in which the home school is located. POMS RS 00205.275(B). A home school instructor must submit evidence that the school meets the state requirements for home schools. POMS RS 00205.275(C). The following is a survey of the state law requirements for EIs and home schools in each of the states in the Chicago region.

Illinois

Illinois law requires whoever has custody or control of a child between the ages of 7 and 16 years to see that the child attends a public school in the district where the child resides. 105 ILCS § 5/26-1 (2000).[2] A child attending a private or parochial school is exempted from this requirement, as long as the education includes instruction in the branches of education taught to children of corresponding age and grade in the public schools and the education is being given in the English language. 105 ILCS 5/26-1(1). “Private school” has been interpreted by the courts to include home schools “where the teacher is competent, the required subjects are taught, and the child receives and education at least equivalent to public schooling.” People v. Harrell, 34 Ill. App. 2d 205, 208, 180 N.E.2d 889, 890 (1962), citing People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950). Parents and guardians who choose the home school option have the burden of showing that they have, in good faith, provided adequate instruction in the required branches of learning. Levisen, 34 Ill. at 578, 18 N.E.2d at 215-16.

An Attorney General's opinion regarding the right of parents to instruct their disabled child in the home issued in 1991, confirms the holdings in both Harrell and Levisen, and further cites People v. Berger, 109 Ill. App. 3d 1054 (1982) (upholding parents' conviction under 105 ILCS 5/26-10 because they took daughter out of school for alleged sickness but failed to provide instruction at home or a valid medical excuse), to support the proposal that “there must be an organized, coherent plan for educating the child in a home school using appropriate materials and teaching methods, in order to satisfy section 26-1 of the School Code.” 1991 Ill. AG LEXIS 45, 1991 Op. Atty Gen. Ill. 92.

An education “equivalent to public schooling” must include instruction in the branches of education taught in the public schools. 105 ICLS 5/26-1(1); see Levisen, 404 Ill. at 578, 90 N.E.2d at 215. Courses requisite for a high school diploma are: (1) three years of language arts; (2) two years of mathematics, one of which may be related to computer technology; (3) one year of science; (4) two years of social studies, at least one of which must be history of the United States or a combination of U.S. history and American government; and (5) one year chosen from music, art, foreign language (which includes American Sign Language) or vocational education. 105 ICLS § 5/27-22.[3] Additionally, Illinois requires five hours of school work per day (105 ILCS § 5/18-8.05(F)(1)) in a school year which includes at least 176 days of actual student attendance for a total of 880 hours per year. 105 ILCS §§ 5/10-19 and 5/18-8.05(F)(1). A parent or guardian home schooling his or her child should be prepared to present information regarding the courses to be taught with a specific emphasis on the branches of learning taught in the public schools, the length of time instruction is offered, including days per year and hours per day, the competency of the teacher and a basis upon which the child's performance will be compared to public school children of corresponding age and grade level. See Levisen, 404 Ill. at 577, 90 N.E.2d at 215; Harrel, 34 Ill. at 208, 180 N.E.2d at 890-91.

Indiana

Indiana law states that it is unlawful for a parent to fail, neglect or refuse to send a child to public school for the full term “unless the child is being provided with instruction equivalent to that given in the public schools.” Ind. Code § 20-8.1-3-34. Home schools may satisfy the requirements of this statute. Ind. Code § 20-8.1-3-17(h)(2); Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp. 1152, 1159 (N.D. Ind. 1983), affirmed 798 F.2d 230 (7th Cir. 1986). Generally, a child is subject to the compulsory attendance law from the earlier of the date the child officially enrolls in a school or the beginning of the fall term for the school year in which the child will turn 7 years of age, until the child graduates, reaches the age of 16 but less than 18, and meets the withdrawal requirements of Ind. Code § 20-8.1-3-17(j), or reaches the age of 18. Ind. Code § 20-8.1-3-17(b). However, a child whose parent or guardian intends to enroll the child in a nonaccredited, nonpublic school or to provide the child with instruction equivalent to that given in a public school, is not subject to the compulsory attendance law until the child reaches the age of 7. Ind. Code § 20-8.1-3-17(h). The parent or guardian of a such a child must certify to the superintendent of the relevant school corporation of their intention. Id.

In order for a student to satisfy the compulsory attendance law at a nonpublic school, the student must attend school each year for the number of days the public schools are in session in the school corporation (district) in which the student is enrolled in Indiana, or, if the student is enrolled in a school outside of Indiana, for the number of days the public schools are in session where the student is enrolled. Ind. Code § 20-8.1-3-17(d). Indiana law requires public school students to receive five hours a day of instruction for grades one through six and six hours per day for grades seven through twelve. Ind. Code § 20-10.1-2-1(b). A school year is to include at least 180 days of instruction. Ind. Code § 20-10.1-2-1(c). Instruction must be given in English. Ind. Code § 20-8.1-3-17(a). Instruction must be given in the following subjects: (1) language arts, including English, grammar, composition, speech and second language; (2) mathematics; (3) social studies and citizenship, including the histories, constitutions and governmental systems of Indiana and the United States; (4) sciences; (5) fine arts, including art and music; (6) health education, physical fitness, safety and the effects of alcohol, tobacco, drugs and other substances on the human body; and (7) any additional studies selected by each governing body subject to revision by the state Board of Education. Ind. Code § 20-10.1-4-5. However, the state exempts from the curriculum requirements set forth in Indiana Code chapters 20 and 21, schools which are nonpublic, nonaccredited and not otherwise approved by the Indiana state board of education. Ind. Code § 20-8.1-3-17.3.

Case law indicates that parents and guardians opting for a home school exemption to compulsory attendance have the burden of showing that the home program provides an education equivalent to that offered in the public schools. See Mazanec, 614 F.Supp. at 1159-60. Indiana does not have any codified law regarding the qualifications of the home school instructors.

Michigan

In Michigan, every parent, guardian or person having control and charge of a child from the age of six to the child's sixteenth birthday must send the child to a public school for the entirety of the school year. Mich. Stat. § 380.1561(1). A child is exempt from the compulsory attendance law if the child is regularly attending and being taught in a state-approved, nonpublic school which teaches subjects comparable to those taught to children of corresponding age and grade level in the public schools of the district in which the nonpublic school is located. Mich. Stat. § 380.1561(3)(a). The Michigan Department of Education (MDOE) has interpreted “comparable” curricula as instruction in mathematics, reading, English, science, social studies at all grade levels, and the Constitutions of the United States and Michigan, the history and present form of civil government of the nation and the state, and the political subdivisions and municipalities of the state ihttp://www.mde.state.mi.usn high school. Parents, Home Schools, “Information on Nonpublic and Home Schools,” p.4. A child is also exempt from the compulsory attendance law if the child is taught at home by a parent or legal guardian in an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing and English grammar. Mich. Stat. § 380.1561(3)(f). A child being educated at home may be exempted from compulsory attendance under either subsection (a) or subsection (f) of the state's compulsory education law. Mich. Stat. § 380.1561(4).

Under subsection (3)(a), a home school may be considered a nonpublic school if it is in compliance with the Private, Denominational and Parochial Schools Act. Mich. Stat. § 388.551 et seq. In order to be in compliance with the Act, qualifying nonpublic school teachers must (1) obtain a Michigan teaching certificate (Mich. Stat. § 388.553), (2) obtain a substitute, full-year or emergency teaching permit, or (3) obtain a bachelor's degree. When a nonpublic school claims to object to the certification requirement on the grounds of sincerely held religious beliefs, however, the minimum education requirements for teachers are waived. People v. DeJonge, 442 Mich. 266, 268, 501 N.W.2d 127, 129 (1993). The state of Michigan, however, may still require teacher certification for home instruction pursuant to subsection (3)(a), which is not based on religious convictions. People v. Bennett, 442 Mich. 316, 327-28, 501 N.W.2d 106, 111-12 (1993); Mich. Stat. § 388.553. Additionally, although nonpublic schools must provide a basic curriculum, including courses in reading, mathematics and writing, the instruction is not required to be identical to that of a public school. Snyder v. Charlotte Public School Dist., 421 Mich. 517, 540, 365 N.W.2d 151, 162 (1984). In Clonlara, Inc. v. State Board of Education, 442 Mich. 230, 242, 501 N.W.2d 88, 94 (1993), the Michigan Supreme Court found that the Nonpublic School Act did not require such a school to be in session for the 180 days required of public schools, as required by Mich. Adm. Code § R 340.10(4).

If a child is exempted from the compulsory education law under the home school provision, subsection (3)(f), the following conditions apply as listed on the MDOE website: (1) the home school is not a nonpublic school; (2) the Michigan Department of Education has no role with the home school family; (3) the home school does not report to the Department of Education; (4) the intermediate and local school district is responsible for interpreting and enforcing the compulsory attendance law; (5) there are no minimum qualifications for teachers except that they must be the parents or legal guardians of the children; (6) the home school family must provide an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing and English grammar. http://www.mde.state.mi.usParents, Home Schools, “Information on Nonpublic and Home Schools”, Attachment B1.

Minnesota

In Minnesota, the parent of a child is primarily responsible for insuring that the child acquires knowledge and skills essential for effective citizenship. Minn. Stat. § 120A.22, Subd. 1. A parent is a parent, guardian or other person having legal custody of a child. Minn. Stat. § 120A.22, Subd. 3. All children between the ages of seven and 16 must receive instruction. Minn. Stat. § 120A.22, Subd. 5. For the purposes of the compulsory attendance law, a school is a public school or a nonpublic school, church or religious organization, or a home school where the child is instructed according to the dictates of Minn. Stat. §§ 120A.22 and 120A.24. Instruction must be given in at least the following subject areas: (1) basic communication skills including reading, writing, literature and fine arts; (2) mathematics and science; (3) social studies including history, geography and government; and (4) health and physical education. Minn. Stat. § 120A.22, Subd. 9. Instruction and materials must be in the English language. Id.

A home school instructor must meet at least one of the following requirements: (1) hold a valid Minnesota teaching license in the field and the grade level taught; (2) be directly supervised by someone with a valid Minnesota teaching license; (3) successfully complete a teacher competency exam; (4) provide instruction in a school that is accredited by an agency recognized according to the dictates of Minn. Stat. § 123B.445, or recognized by the commissioner; (5) hold a bachelor's degree; or (6) be the parent of a child annually assessed for performance under the dictates of Minn. Stat. § 120A.22, Subd. 11. Minn. Stat. § 120A.22, Subd. 10. Subdivision 11 provides that each year every child not enrolled in a public school must be performance tested against a nationally norm-referenced standardized achievement test. The district superintendent and the person in charge of the child's instruction must agree on the specific test to be used as well as the administration and location of the test. If the test does not assess all subject areas enumerated in Minn. Stat. § 120A.22, Subd. 9, the parent must assess the child's performance in the applicable subject area(s); this requirement applies only to parents who do not meet the requirements of subdivision 10, clauses 1-3. Minn. Stat. § 120A.22, Subd. 11, clause (b). If the above mentioned tests indicate that the child's performance on the total battery score is at or below the 30th percentile or one grade level below the child's age, the parent is required to obtain additional evaluation of the child's abilities and performance in order to assess whether the child has learning problems. Minn. Stat. § 120A.22, Subd. 11(c).

Minnesota statute § 120A.24 requires the person in charge of providing instruction to a child to submit the following information to the superintendent of the district in which the child resides: (1) the name, birth date and address of each child receiving instruction by October 1 of each school year; (2) the name of each instructor and evidence of compliance with one of the requirements specified in Minn. Stat. § 120A.22, Subd 10; (3) a yearly instruction calendar; and (4) for each child instructed by a parent who only meets the requirement of Minn. Stat. § 120A.22, Subd. 10, clause (6), a quarterly report card on the achievement of the child in each subject area specified in Minn. Stat. § 120A.22, Subd. 9. The person in charge of instructing the child must make available documentation indicating that the subjects required in Minn. Stat. § 120A.22, Subd. 9 are being taught, including class schedules, copies of materials used for instruction and descriptions of the methods used in assessing performance. Minn. Stat. § 120A.24, Subd. 2. A nonpublic school, person or other institution which is accredited by an agency recognized according to Minn. Stat. § 123B.445, or the commissioner, is exempt from the above listed requirements of Minn. Stat. § 120A.24, except for reporting the name, birth date and address of the student to the superintendent. Minn. Stat. § 120A.24.

Ohio

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. (a) 

    the school year in which the notification (of intent to home educate) is made;

  2. (b) 

    the name and address of the parent;

  3. (c) 

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

  4. (d) 

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

  5. (e) 

    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. (f) 

    a brief outline of the intended curriculum for the current year;

  7. (g) 

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

  8. (h) 

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

  9. (i) 

    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. (j) 

    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).

Wisconsin

In Wisconsin, the compulsory school attendance law generally requires the person having control of a child between the ages of 6 and 18 to attend either a public or private school “regularly”[4] during the full period and hours, excepting religious holidays, that the school in which the child should be enrolled is in session, until the term in which the child turns 18. Wis. Stat. § 118.15(1)(a) (1999). A child engaged in a home-based program which meets all of the criteria under Wis. Stat. § 118.165(1), may substitute that instruction for public or private school attendance. Wis. Stat. § 118.15(4). The administrator of a home-based educational program must submit to the Department of Public Instruction by October 15, a statement of the enrollment of elementary and/or high school age students and a report indicating whether the program meets all of the criteria under Wis. Stat. § 118.165(1). Wis. Stat. § 115.30(3) (1999). It should be noted that the state defines a “home-based private educational program” as a program provided to a child by the child's parent or guardian, or by a person designated by the parent or guardian; if the program provides for more than one family unit, it is not a home-based private educational program. Wis. Stat. § 115.001(3g) (1999).

Wisconsin statute § 118.165(1) requires at least 875 hours of instruction each school year. Wis. Stat. § 118.165(1)(a)-(c). The institution must also provide a sequentially progressive curriculum of instruction in the fundamentals of reading, language arts, mathematics, social studies, science and health. Wis. Stat. § 118.165(1)(d). The institution is not required to include in its curriculum any concept, topic or practice in conflict with its religious doctrines or to exclude any concept, topic or practice consistent with its religious doctrines. Id. Additionally, the institution must not be operating the educational program for the purposes of circumventing the compulsory school attendance law of the state. Wis. Stat. § 118.165(1)(e).

Wisconsin does not have statutory requirements regarding teacher qualification for home schools. However, it is important to remember that the state defines a home school on the basis of a single family unit.

CONCLUSION

These are the current requirements for home schooling in each of the six states in our region.

Thomas W. C~
Chief Counsel, Region V

By: _______________________
Elizabeth F~
Assistant Regional Counsel

C. PR 01-230 Home Schooling in Indiana; The G~ Home School; Claimant Lindsey M. G~; SSN ~; Your Ref: S2D5G3

DATE: November 8, 2001

1. SYLLABUS

The State of Indiana recognizes home schooling under its compulsory attendance law. Indiana law requires instruction equivalent to that given in public schools for children who do not attend public schools. Schools, including home schools, must provide at least 180 days of instruction. An instructional day is a minimum of six hours of instruction per day for grades seven through twelve, and the minimum school term is nine months. Home school educators choose the days and keep attendance records. The G~ Home School (GHS) did not submit attendance records, as required by Indiana law, showing that the student attended the home school for six hours per day for 180 days. Thus, the GHS was not an educational institution for SSA purposes.

2. OPINION

This memorandum is in response to your request for a legal opinion as to whether the G~ Home School qualifies as an educational institution under Indiana law. You indicated that this information is necessary in determining whether Lindsey M. G~ qualifies as a full-time secondary school student thereby making her eligible for survivor's benefits on the account of her late father, Michael D. G~.

As discussed herein, we conclude that you cannot find that the G~ Home School is an educational institution if Ms. G~ does not provide attendance records to show that Lindsey attended the home school for 180 days a year, six hours each day.

BACKGROUND

Lindsey M. G~(Lindsey) was home-schooled by her mother, Penny J. G~ (Ms. G~), during the 1999 - 2000 and 2000 - 2001 academic years. The record indicates that Ms. G~ acquired educational materials and a curriculum provided by the American School in Lansing, Illinois. Lindsey submitted a signed statement indicating that she attended a home school that was accredited through the Indiana Department of Education. She further stated that she attended the home school twenty-eight (28) hours a week for a nine month term beginning August 1999 and ending May 2000 and was attending the home school twenty (20) hours a week for a nine month term of beginning August 2000 and ending May 2001. Furthermore, Lindsey indicated that she intended to attend the home school twenty (20) hours a week for a nine month term during the 2001 - 2002 academic school year.

DISCUSSION

The Social Security Act (“Act”) provides for the payment of child's insurance benefits (CIB) to certain unmarried children of individuals who are entitled to old-age or disability insurance benefits or who died fully or currently insured. See 42 U.S.C. § 402 (d). Under the applicable provision, an eligible child who is 18 years old may receive benefits if she is a full-time elementary or secondary school student. See 42 U.S.C. § 402 (d) (1); 20 C.F.R. § 404.350 (a) (5); POMS RS 00205.001.

The Act states that a “full-time elementary or secondary school student” is “an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner of Social Security (in accordance with regulations prescribed by the Commissioner) in the light of the standards and practices of the schools involved.” See 42 U.S.C. § 402 (d) (7) (A).

A home schooled child is eligible for benefits as a full-time student if:

  1. 1. 

    the student meets the federal standards for full-time attendance;

  2. 2. 

    the law of the state in which the home school is located recognizes a home school as an educational institution; and

  3. 3. 

    the home school attended by the student meets the requirements of the state laws in which the home school is located.

A home school instructor must submit evidence that the school meets the state requirements for home schools including any state-law required attendance logs or charts. POMS RS 00205.275(C); 20 C.F.R. § 404.367. Therefore, we must examine Indiana law to determine whether G~ Home School is an Educational Institution. In addition, we must consider whether Lindsey satisfies the federal standards for full-time attendance.

Legality of Home Schools in Indiana

Indiana does not have a statute specifically addressing home schooling. However, the Indiana Compulsory Attendance Law provides that “each individual shall attend either a public school which the individual is entitled to attend under IC 20-8.1-6.1 or some other school which is taught in the English language.” Ind. Code. § 20-8.1-3-17 (a). In addition, the Indiana Compulsory Attendance Law gives parents the explicit right to decide where their children will be educated and to provide their children “with instruction equivalent to that given in public schools.” See Ind. Code §§ 20-8.1-3-17 (h), 20-8.1-3-34. Furthermore, an Indiana Appellate Court has held that the Indiana Compulsory Attendance Law allows the operation of home schools. State v. Peterman , 32 Ind. App. 665, 70 N.E. 550 (1904). In Mazanec v. North Judson-San Pierre School Corp. , 614 F.Supp. 1152, 1160 (N.D. Ind. 1983), affirmed 798 F.2d 230 (7th Cir. 1986), a federal district court recognized that parents have a constitutional right to educate their children at home. Since home schools are nonpublic, nonaccredited schools, the parent, not the state, legally establishes the school. See Ind. Code. §§ 20-8.1-3-17.3, 20-8.1-3-24. Consequently, parents in Indiana have the legal option of operating a home school as a private school.

In Indiana, parents must keep attendance records. Under the statute “an accurate daily record of the attendance of each child who is subject to compulsory school attendance under section 17 of this chapter shall be kept by every public and private school.” Ind. Code § 20-8.1-3-23(a).

Indiana exempts home schools from the curriculum programs requirements which public schools must follow. See Ind. Code § 20-8.1-3-17.3 (“A school that is (1) nonpublic; (2) nonaccredited; and (3) not otherwise approved by the Indiana state board of education; is not bound by any requirements set forth in [Indiana Code Chapter] 20 or [Indiana Code Chapter] 21 with regard to curriculum or the content of educational programs offered by the school.”). Therefore, for home schools, there is no “state-approved” curriculum at any grade level, and there are no “state-approved” text books that parents are required to use. The State legislature has designed an educational system that generally waives all procedural prerequisites to nonaccredited, private schooling. The State has no statutory or regulatory authority to intrude in this process. In addition, there are no teacher credential requirements, standardized testing of students, certification or licensure requirements of any kind for any nonpublic, nonaccredited school including home schools.

Under Indiana law children who do not attend public schools are required to be “provided with instruction equivalent to that given in public schools.” Ind. Code § 20-8.1-3-34. However, there is no statutory definition of equivalency of instruction. Federal case law suggests that parents and guardians opting for a home school exemption to compulsory attendance have the burden of showing that the home program provides an education equivalent to that offered in the public schools in Indiana. See Mazanec, 614 F.Supp. at 1159-60 (“It is the function of this court to decide whether that education constitutes 'instruction equivalent to that given in the public schools'”).

The State of Indiana requires that schools including home schools must provide 180 instructional days. See Ind. Code § 20-10.1-2-1 (c) (For the 1988-89 school year and each school year after that, each school corporation shall conduct at least one hundred eighty (180) student instructional days.); Indiana Department of Education - Office of Student Services, Indiana Home School Help Sheet, (last visited October 29, 2001) at http://ideanet.doe.state.in.us/sservices/homed.htm (Indiana requires 180 days of instruction from home schools and other nonaccredited, private schools); see also 20 C.F.R. § 404.367 (b). Thus, under Indiana law, educators must teach a minimum of 180 days per year. See Indiana Department of Education - Office of Student Services, The Relationship Between Public Schools and Home Schools in Indiana, (last visited October 29, 2001) at http://ideanet.doe.state.in.us/sservices/hsefaq.htm . (Home educators must teach a minimum of 180 days per year (IC 20-8.1-3-17)). Home school educators choose the days and keep attendance records. An instructional day consists of a minimum of six (6) hours of instruction per day for grades seven through twelve. Ind. Code § 20-10.1-2-1 (b). In addition, the minimum length of the school term is nine (9) months. See Ind. Code § 20-10.1-2-2.

Because “equivalent instruction” is not defined, and Indiana has offered no direction in assisting one to make such a determination, it is difficult to evaluate whether the G~ Home School meets this standard. On the education statement Lindsey completed, she indicated that she obtained courses provided through American School. A cursory examination of American School's programs shows that their General Studies diploma is comprised of 10 required courses and 6 electives. Since the curriculum seems reasonable and the state law is vague, we believe that it is likely Indiana would find the G~ Home School to provide “equivalent instruction.”

In addition, Indiana law provides that the minimum length for a school term is nine (9) months. As Lindsey indicates that she received instruction from August 16 to May 25, it appears that G~ Home School met this requirement. See Ind. Code § 20-10.1-2-2.

The record lacks any documentation evidencing that Ms. G~ provided Lindsey with the statutorily required 180 days of instruction for six hours each day. However, attendance records which Ms. G~ was required to keep under Indiana law, can verify whether this requirement was met.

Federal requirements for full-time student

To meet Federal standards for full-time attendance, the student must be: (1) scheduled for attendance at the rate of at least 20 hours per week; (2) enrolled in a course that is not a correspondence course unless the student is taught in a home by a parent or other teacher who uses course material from a correspondence school; and (3) enrolled in a course of study that is of at least 13 weeks' duration. See POMS RS 00205.300(C); POMS RS 00205.315 (for policy on duration of course of study). The duration of the course refers to the entire course of study (e.g., a 4-year high school program or GED course) and not the individual course offering or other segment of the entire course (i.e., semester or summer session). See POMS RS 00205.315. A break in FTA of more than 4 months ends the duration of a course requirement. See POMS RS 00205.315.

Here, Lindsey indicated on Form SSA-1372-F4 (10-94) that she had attended school or was scheduled to attend school at least twenty (20) hours a week. The record also indicates that Lindsey attended the G~ Home School longer than the 13 weeks prescribed by federal law. Thus, she appears to meet federal standards for full-time attendance.

CONCLUSION

We conclude that you may find Lindsey was a full-time student if she submits attendance records showing that she attended the home school at least 180 days a year for six hours each day.

D. PR 00-015 Qualifications For Home Schools Under The Laws In Region V

DATE: January 31, 2001

1. SYLLABUS

Indiana permits home schooling provided the child receives instruction equivalent to that furnished in public schools. Indiana law requires 5 hours per day of instruction for grades 1 through 6 and 6 hours per day for grades 7 through 12. A school year must include at least 180 days of instruction.

A parent or guardian home school instructor should submit evidence to prove that the home school program provides an education equivalent to that offered in the public schools.

2. OPINION

You have requested information regarding the educational institution (EI) requirements for each state in the Chicago region. Section 202(d)(7)(c)(i) of the Social Security Act defines an elementary or secondary school as a school which provides elementary or secondary education, respectively, as determined under the law of the state in which it is located. This definition also appears in 20 C.F.R. § 404.367 which addresses the federal full-time attendance requirement for student benefits. 20 C.F.R. § 404.367(a)(1) provides that a student is instructed in an elementary or secondary education at home if such education is provided in accordance with the home school laws of the state in which the student resides. The Program Operations Manual System (POMS) provides that a home schooled child is eligible for student benefits if the student meets the federal standards for full-time attendance [5] , the law of the state in which the home school is located recognizes a home school as an EI, and the home school attended by the student meets the requirements of the state laws in which the home school is located. POMS RS 00205.275(B). A home school instructor must submit evidence that the school meets the state requirements for home schools. POMS RS 00205.275(C). The following is a survey of the state law requirements for EIs and home schools in each of the states in the Chicago region.

Indiana

Indiana law states that it is unlawful for a parent to fail, neglect or refuse to send a child to public school for the full term "unless the child is being provided with instruction equivalent to that given in the public schools." Ind. Code § 20-8.1-3-34. Home schools may satisfy the requirements of this statute. Ind. Code § 20-8.1-3-17(h)(2); Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp. 1152, 1159 (N.D. Ind. 1983), affirmed 798 F.2d 230 (7th Cir. 1986). Generally, a child is subject to the compulsory attendance law from the earlier of the date the child officially enrolls in a school or the beginning of the fall term for the school year in which the child will turn 7 years of age, until the child graduates, reaches the age of 16 but less than 18, and meets the withdrawal requirements of Ind. Code § 20-8.1-3-17(j), or reaches the age of 18. Ind. Code § 20-8.1-3-17(b). However, a child whose parent or guardian intends to enroll the child in a nonaccredited, nonpublic school or to provide the child with instruction equivalent to that given in a public school, is not subject to the compulsory attendance law until the child reaches the age of 7. Ind. Code § 20-8.1-3-17(h). The parent or guardian of a such a child must certify to the superintendent of the relevant school corporation of their intention. Id.

In order for a student to satisfy the compulsory attendance law at a nonpublic school, the student must attend school each year for the number of days the public schools are in session in the school corporation (district) in which the student is enrolled in Indiana, or, if the student is enrolled in a school outside of Indiana, for the number of days the public schools are in session where the student is enrolled. Ind. Code § 20-8.1-3-17(d). Indiana law requires public school students to receive five hours a day of instruction for grades one through six and six hours per day for grades seven through twelve. Ind. Code § 20-10.1-2-1(b). A school year is to include at least 180 days of instruction. Ind. Code § 20-10.1-2-1(c). Instruction must be given in English. Ind. Code § 20-8.1-3-17(a). Instruction must be given in the following subjects: (1) language arts, including English, grammar, composition, speech and second language; (2) mathematics; (3) social studies and citizenship, including the histories, constitutions and governmental systems of Indiana and the United States; (4) sciences; (5) fine arts, including art and music; (6) health education, physical fitness, safety and the effects of alcohol, tobacco, drugs and other substances on the human body; and (7) any additional studies selected by each governing body subject to revision by the state Board of Education. Ind. Code § 20-10.1-4-5. However, the state exempts from the curriculum requirements set forth in Indiana Code chapters 20 and 21, schools which are nonpublic, nonaccredited and not otherwise approved by the Indiana state board of education. Ind. Code § 20-8.1-3-17.3.

Case law indicates that parents and guardians opting for a home school exemption to compulsory attendance have the burden of showing that the home program provides an education equivalent to that offered in the public schools. See Mazanec, 614 F.Supp. at 1159-60. Indiana does not have any codified law regarding the qualifications of the home school instructors.

 


Footnotes:

[1]

On the basis of their ages, some students applying for benefits will be exempt from their state's compulsory attendance laws; however, federal law still requires at least 20 hours per week of scheduled attendance (with some exceptions) for benefits. 20 C.F.R. § 404.367(c). Whether a home school qualifies as an EI for student benefit purposes depends on the school's compliance with state law. Generally, all the states in Region V require a full-time program for home schools to satisfy state standards; therefore, it is necessary to discuss the various compulsory education laws regardless of the age of the claimant.

[2]

All state statutory and administrative code references are from 2000 (LEXIS) unless otherwise indicated.

[3]

Illinois law requires the teaching of numerous other subjects in the public schools, including consumer education, conservation of natural resources, physical education and career education. 105 ILCS 5/27-12.1, 5/27-13.1, 5/27-5 to 7, 23 Ill. Adm. Code § 1.420. It does not appear that the state requires home schools to adhere to course requirements other than the core subjects listed above.

[4]

“Regularly” means constantly and uniformly. State v. White, 180 Wis. 2d 203, 215, 509 N.W.2d 434, 438 (Wis. App. 1993).

[5]

On the basis of their ages, some students applying for benefits will be exempt from their state's compulsory attendance laws; however, federal law still requires at least 20 hours per week of scheduled attendance (with some exceptions) for benefits. 20 C.F.R. § 404.367(c). Whether a home school qualifies as an EI for student benefit purposes depends on the school's compliance with state law. Generally, all the states in Region V require a full-time program for home schools to satisfy state standards; therefore, it is necessary to discuss the various compulsory education laws regardless of the age of the claimant.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508005017
PR 08005.017 - Indiana - 07/12/2011
Batch run: 11/12/2013
Rev:07/12/2011