University of Mississippi High School (UMHS), a tuition-based, online high school accredited by the Southern Association of Colleges and Schools’ Council on Accreditation and School Improvement qualifies as an educational institution in accordance with the statutes of the State of Mississippi. Mississippi does not require nonpublic schools to be accredited, and state statutes broadly restrict the state’s power to regulate nonpublic schools.

You requested a legal opinion on whether University of Mississippi High School (UMHS), an online school based in Mississippi, qualifies as an educational institution within the meaning of section 202(d)(7) of the Social Security Act, 42 U.S.C. § 402(d)(7). You asked whether the student attended UMHS full time. For the reasons discussed below, it is our opinion that UMHS qualifies as an educational institution, and that the student attended the school on a full-time basis.

FACTUAL BACKGROUND

The materials you provided indicate that R~, a Missouri resident, received auxiliary child’s insurance benefits until attaining age 18 in October 2015. She completed Form SSA-1372-BK indicating enrollment at UMHS since August XX, 2015, with an expected graduation date of August 2016. She stated that she was scheduled to attend the school for 35 hours per week. UMHS Director E~ signed a certification attesting that the information the student provided was correct. In a 2015 Executive Summary, Dr. E~ described UMHS as a tuition-based online high school administered by the Pre-College Programs Department of the University of Mississippi. E~, Executive Summary: The University of Mississippi High School at 2 (Jan. 8, 2015), available for download at http://www.advanc-ed.org/oasis2/u/par/accreditation/summary?institutionId=11754.

ANALYSIS

Section 202(d) of the Social Security Act provides that child’s insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6) and (7). Entitlement to child’s benefits may continue, however, if (among other things) the child “was a full-time elementary or secondary student and had not attained the age of 19.” 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner, in light of the standards and practices of the schools involved. Id. § 402(d)(7)(A). An elementary or secondary school is defined as “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.” Id. § 402(d)(7)(C)(i); see also Program Operations Manual System (POMS) RS 00205.200 (defining “educational institution”). Except for two exceptions inapplicable under the facts provided, the student must be scheduled to attend school for at least 20 hours per week in order to be considered in full-time attendance. See 20 C.F.R. § 404.367(c). A child attending an online school can be considered a full-time student if the student meets the standards for full-time attendance and the online school is consistent with the laws of the state in which the online school is located. See POMS RS 00205.295.

The issue is whether UMHS is an educational institution under Mississippi law. As noted in your request, agency legal guidance dated March 12, 2010, states that Mississippi did not have an online program that could qualify independently as an educational institution for agency purposes at that time. See POMS PR 08205.027. Our research indicates, however, that UMHS became accredited by the Southern Association of Colleges and Schools’ Council on Accreditation and School Improvement (SACS CASI-AdvancED) on June 22, 2010. See AdvancED, Institution Summary: The University of Mississippi High School, http://www.advanc-ed.org/oasis2/u/par/accreditation/summary?institutionId=11754 (last visited Jan. 29, 2016); E~, Executive Summary at 2.

Mississippi statutes distinguish between public schools and nonpublic schools. See Miss. Code Ann. § 37-13-91. UMHS is not listed as a public school recognized by the Mississippi Department of Education (MDE). See MDE, Mississippi District and School Information, http://www.mde.k12.ms.us/map?ShowList=1 (last visited Jan. 29, 2016). Mississippi statutes define a “nonpublic school” as an “institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members and students, and which is in session each school year. This definition shall include, but not be limited to, private, church, parochial and home instruction programs.” Miss. Code Ann. § 37-13-91(2)(i). Although a narrow reading of the “physical plant” requirement could appear at odds with UMHS’s online model, the state’s approval of virtual courses in educational contexts militates against that interpretation. For example, the state has created the Mississippi Virtual Public School Program, and allows state-recognized “districts of innovation” to employ virtual programs. See id. §§ 37-13-161-3, 37-179-3(4)(i). UMHS lists two public “partner districts” in the state, as well as more than 40 courses approved by MDE for correspondence study. E~, Executive Summary at 2; UMHS, UM High School Courses for Correspondence, http://www.outreach.olemiss.edu/hsathome/ms_highschools.html (last visited Jan. 29, 2016).

Mississippi does not require accreditation of nonpublic schools. See MDE, Accreditation Frequently Asked Questions Q13, http://www.mde.k12.ms.us/ACCRED/faq (last visited Jan. 29, 2016). Moreover, Mississippi statutes broadly restrict the state’s power to regulate nonpublic schools. See Miss. Code Ann. §37-13-91(9) (providing that the State of Mississippi has no “right or authority to control, manage, supervise or make any suggestion as to the control, management or supervision of any private or parochial school or institution for the education or training of children, of any kind whatsoever that is not a public school according to the laws of this state”). Mississippi has a voluntary nonpublic school accreditation process, but also recognizes that nonpublic schools may be accredited by nonpublic school associations or groups. See Miss. Code Ann. § 37-17-9; see also U.S. Department of Education, Mississippi: State Regulation of Private and Home Schools, http://www2.ed.gov/about/offices/list/oii/nonpublic/mississippi.html (July 12, 2013).

UMHS has a SACS CASI-AdvancED accreditation, lists a partnership with two Mississippi public school districts, and lists more than 40 courses approved by MDE for correspondence study. AdvancED, Institution Summary; E~, Executive Summary at 2; UMHS, UM High School Courses for Correspondence. UMHS also states that it uses MDE Curriculum Frameworks as its curriculum. E~, Executive Summary at 3. Although accreditation by SACS does not necessarily result in accreditation by the state, SACS-accredited schools automatically meet certain requirements of the Mississippi Nonpublic School Accountability Standards, including mission statement and strategic planning standards, and on-site evaluation requirements. See MDE, Mississippi Nonpublic School Accountability Standards at 9, 13, 33 (2004), available for download at http://www.mde.k12.ms.us/ACCRED/AAS. Thus, although not accredited under the state’s voluntary nonpublic school accreditation standards, UMHS appears to meet many of its requirements. See MDE, Mississippi Nonpublic School Accountability Standards at 9, 13, 33. In any case, given Mississippi’s lack of mandatory state accreditation for nonpublic schools, and the state’s recognition of nonpublic accreditation agencies such as SACS, UMHS appears to meet the criteria of an educational institution under the Social Security Act.

Additionally, the student satisfies the agency’s full-time attendance requirements based on the documents provided. As noted above, Dr. E~, UMHS’s Director, signed a certification attesting to the accuracy of the student’s statement that she was scheduled to attend school at UMHS for 35 hours per week, which exceeds the 20-hour requirement of 20 C.F.R. § 404.367(c).

CONCLUSION

Based on all of the above, we believe UMHS qualifies as an educational institution within the meaning of 42 U.S.C. § 402(d)(7). Additionally, we believe the student meets the full-time attendance requirements of 20 C.F.R. § 404.367(c).

Kristi A. Schmidt

Chief Counsel, Region VII

By Frank D. Tankard

Assistant Regional Counsel

At the time the regional attorney reviewed whether Mississippi recognized online schools as educational institutions (EI), Mississippi did not have an online program that could qualify independently as an EI for SSA purposes. The adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 if a student alleges full-time attendance at an online school in Mississippi.

BACKGROUND

To be eligible for child’s benefits on the earnings record of an insured person who is entitled to old-age or disability benefits, a claimant eighteen years or older who is not disabled must be a full-time elementary or secondary school student. See Social Security Act (Act) § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2009). An individual can meet this requirement if he or she attends a school that provides elementary or secondary education as determined under the law of the state in which the school is located. See Act § 202(d)(7)(A), (C)(i); 20 C.F.R. § 404.367(a). You have asked an online school can qualify as an educational institution under the laws of the states within the Atlanta region. Few states in the Atlanta region have specific provisions allowing on-line schools. Rather the states tend to provide general guidelines for what they recognize as an educational institution and some on-line schools might satisfy those guidelines. It is important to note, however, that other on-line schools may not qualify. As with other types of schools, each case will require an individual determination based on the facts as presented. Following is a review of each of the eight states within the Atlanta region.

DISCUSSION

Alabama:

Alabama recognizes four types of educational entities: public schools, private schools, church schools, or instruction from a competent private tutor. See Ala. Code § 16-28-3 (2009) (requiring attendance of every child between the ages of seven and sixteen years, with limited exceptions, at one of these educational entities). Alabama contemplates teacher-assisted online learning, and requires among its teaching standards that teachers have knowledge of the wide range of technologies to support and enhance instruction, including distance learning and online learning opportunities. See Ala. Admin. Code r. 290-3-3-03, Standard 3.4(ii) (2008). Alabama offers residents the opportunity to take courses offered by public schools online for free. See http://distancelearn.about.com/od/virtualhighschools/a/AlabamaPublic.htm (visited Feb. 16, 2010); http://accessdl.state.al.us/ (visited Feb. 16, 2010). With the exception of one credit hour for physical education, a half credit hour for arts education, and a state-required graduation examination, the offerings online via either Web-Based Instruction or Video Conferencing Instruction can enable a student to graduate from high school in Alabama while attending school online for grades 9, 10, 11, and 12. See http://accessdl.state.al.us/courses.html (indicating course offerings) (visited Feb. 16, 2010). We did not find any Alabama statute, regulation or administrative code regarding the requirements for attending or graduating from high school in Alabama through the online courses outlined in the above-noted websites. We also did not find any Alabama statute, regulation, or administrative code regarding whether taking online courses not offered by Alabama public schools, including entities outside Alabama, might satisfy the standards of a school under Alabama law.

A private school in Alabama must hold a certificate issued by the State Superintendent of Education, see Ala. Code § 16-28-1(1) (2009), and must be licensed to operate in the state, see Ala. Code § 16-46-5 (2009) (denoting that a private secondary and K-12 school must be licensed to operate, and such licensure includes fees, a statement of financial stability, and payment of a surety bond). A private school certificate must show it conforms to the following requirements: 1) the teachers must be certified by the State Superintendent of Education; 2) instruction must be offered in the several branches of study required to be taught in the public schools of Alabama; 3) English must be used in instructing the students; and 4) a register of attendance must be kept that clearly indicates every absence of each child from school for a half day or more during each school day of the school year. See Ala. Code § 16-28-1(1); see also Ala. Admin. Code r. 290-3-2-.02 (2008) (denoting teacher certification requirements). We found nothing in Alabama law prohibiting a private (non-church) school, which meets these requirements, from providing online education in Alabama.

Church schools are “schools . . . operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal funding.” Ala. Code § 16-28-1(2). A child attending a church school is exempt from the requirements of compulsory attendance provided the child complies with the procedure in section 16-28-7. See Ala. Code § 16-28-3. “The enrollment and attendance of a child in a church school must be filed with the local public school superintendent by the parent . . . on a form provided by the superintendent . . . which shall be countersigned by the administrator of the church school.” Ala. Code § 16-28-7 (2009). Additionally, the principal teacher of the church school must keep an attendance register for each day of the school year. See Ala. Code § 16-28-8 (2009). In an opinion dated January 3, 1997, the Alabama Attorney General stated:

There is no statutory authority authorizing or requiring any state or local authority to regulate church schools, which may conduct classes as they see fit. There is no requirement that church school teachers be certified or that a church school be accredited by the state or any private agency. No state or government authority has the authority to regulate a church school. . . .

Other than the state laws requiring parents to report attendance and for church schools to report if a student is no longer in attendance at such a church school, there is no provision of Alabama law that permits or requires any state or local authority to regulate a church school.

246 Ala. Op. Atty. Gen. 14, 1997 WL 1053990 (Ala. A.G.). Thus, the parents of a student attending an online church school might need to comply only with Alabama attendance reporting requirements.

Alabama also recognizes that a child can receive instruction from a competent private tutor. See Ala. Code § 16-28-5 (2009). The tutor must be a state certified teacher, teach “for at least three hours a day for 140 days each calendar year, between the hours of 8:00 a.m. and 4:00 p.m.,” file with the county superintendent a statement describing subjects taught and period of instruction, keep a register of the child’s work showing daily hours of instruction and attendance, and make such reports as the State Board of Education may require. Id. To obtain a high school diploma, a child must have credits in such courses as English, algebra, geometry, biology, social studies, physical education, and arts education. See Ala. Admin. Code r. 290-3-1-.02(8) (2008). Contents of courses not defined in the state course of study must be approved by the local board of education. Id. Alabama does not appear to address whether instruction by a competent private tutor could be provided online, but a student obtaining online tutoring from an Alabama certified teacher might qualify as online coursework in the state.

Florida:

Florida law recognizes five types of educational entities: public schools, private schools, parochial, religious or denominational schools, home education programs, and private tutoring programs. See Fla. Stat. Ann. § 1003.01(13) (West 2009). Florida law further states that parents of public school students may seek the public school choice option available to their child. See Fla. Stat. Ann. § 1002.20(6)(a) (West 2009). Public school choices include enrollment at the Florida Virtual School. See id. Thus, Florida allows students to attend public school online. The Florida Virtual School was established to develop and deliver online and distance learning education. See Fla. Stat. Ann. § 1002.37(1)(a) (West 2009). It is administratively housed within the Commissioner of Education’s Office of Technology and Information Services. See id. The mission of the Florida Virtual School is to provide students with technology-based educational opportunities to gain the knowledge and skills necessary to succeed. See id. at (b). This school serves any student in the state who meets the profile for success in this educational delivery context, with priority given to: (1) students who need expanded access to courses to meet their educational goals, such as home education students and students in inner-city and rural high schools who do not have access to higher-level courses; and (2) students seeking accelerated access to obtain a high school diploma at least one semester early. See id.

A “private school” in Florida is a nonpublic school defined as:

an individual, association, copartnership, or corporation, or department, division, or section of such organizations, that designates itself as an educational center that includes kindergarten or a higher grade or as an elementary, secondary, business, technical, or trade school below college level or any organization that provides instructional services . . . . A private school may be a parochial, religious, denominational, for-profit, or nonprofit school.

Fla. Stat. Ann. § 1002.01(2) (West 2009).

Florida has state attendance requirements for private school students. See Fla. Stat. Ann. § 1002.42(7) (West 2009) (citing Fla. Stat. Ann. §§ 1003.01(13), 1003.21(1) (West 2009)). The attendance requirements are defined by law and the rules of the State Board of Education. See Fla. Stat. Ann. § 1003.01(13) (West 2009). The Florida State Board of Education rules describe the following school attendance requirements in a non-public school:

(1) One hundred eighty (180) actual school days determined as prescribed by Section 1011.60(2), Florida Statutes, or

(2) A minimum of one hundred seventy (170) actual school days and the hourly equivalent of one hundred eighty (180) actual school days, determined as prescribed below:

(a) Kindergarten: Five hundred forty (540) net instructional hours.

(b) Grades 1-3: Seven hundred twenty (720) net instructional hours.

(c) Grades 4-12: Nine hundred (900) net instructional hours.

Fla. Admin. Code Ann. r. 6A-1.09512 (2010). Keeping and preparing attendance records applies to “all officials, teachers, and other employees in parochial, religious, denominational, and private schools . . . .” Fla. Stat. Ann. § 1002.42(4) (West 2009). Florida law does not appear to prohibit a private school from providing education to students online, nor does it appear to specifically allow such instruction.

A student in Florida may achieve regular school attendance as by attending a private tutoring program, provided the person tutoring the student: (a) holds a valid Florida certificate to teach the subjects or grades in which instruction is given; (b) keeps all records and makes all reports required by the state and district school board and makes regular reports on the attendance of students; and (c) requires students to be in actual attendance for the minimum length of time as prescribed by statute. See Fla. Code. Ann. § 1002.43(1) (West 2009). The statutory requirement for a minimum school term is that all schools must operate “for a term of 180 actual teaching days or the equivalent on an hourly basis as specified by rules of the State Board of Education each school year.” Fla. Stat. Ann. § 1011.60(2) (West 2009). Florida law does not appear to prohibit a private tutor from providing education to students online, nor does it appear to specifically allow such instruction.

Georgia:

Georgia recognizes three types of educational entities: public schools, private schools, and home study programs. See Ga. Code Ann. § 20-2-690(a) (West 2009). Georgia also recognizes online learning through the Georgia Virtual School. See Ga. Code Ann. § 20-2-319.1 (West 2009). The Georgia Virtual School is fully accredited and offers a full high school curriculum with advanced placement and college prep level courses and a limited middle school curriculum. See http://www.gavirtualschool.org/ (visited Feb. 20, 2010). Under a tuition program, students may take additional courses to enhance their course of study or to catch up if they have fallen behind. See id. All courses are taught by certified teachers and the Georgia Virtual School offers courses free of charge to all Georgia students who are taking courses as part of their state reported school day. See Ga. Code Ann. § 20-2-319.1. Students from public school are given priority over private school students for enrollment in Georgia Virtual School courses. See id. The Georgia Virtual School also provides special programs for out-of-state students and to hospital/homebound students at no cost if funded seats are available or with the payment of tuition in an unlimited capacity. See http://www.gavirtualschool.org/Home/ParentInformation/ tabid/141/Default.aspx (visited Feb. 20, 2010) (viewing subtabs for Out of State Students and Hospital Homebound or Special Education Students). This program allows students to either take courses online during their regular school day or take additional courses after regular school hours or during the summer. See http://www.gavirtualschool.org/Home/SchoolInformation/ PublicSchools/tabid/142/Default.aspx (visited Feb. 20, 2010). Further, each school must have a person appointed to approve all courses a student requests to take with Georgia Virtual School. See http://www.gavirtualschool.org/Default.aspx?tabid=149 (visited Feb. 20, 2010). The schools must have a monitor who works in tandem with the online instructor and provides the student with face-to-face support, necessary technical and academic guidance, and resources at the local school, is responsible for coordinating required tests, and acts as a liaison between the local school and Georgia Virtual School. See id. The local school must agree to accept and transcribe the students’ grades at the end of the semester. See id. The Georgia Virtual School does not grant credit itself. See id. Thus, a student attending the Georgia Virtual School must also be enrolled in a “brick and mortar” school to convert any virtual course credits to accepted transcript credits on the student’s official school record.

As indicated above, private school students may also attend the Georgia Virtual School, albeit with lower priority. See Ga. Code Ann. § 20-2-319.1. A “private school” in Georgia must: (1) have providing education as its primary purpose; (2) be privately controlled and operate on a continuing basis; (3) provide instruction each 12 months for the equivalent of 180 school days of education with each school day consisting of at least four and one-half school hours; (4) provide a basic academic educational program that includes reading, language arts, mathematics, social studies, and science; (5) provide to the school superintendent of each local public school district which has residents enrolled in the private school with a list of the name, age, and residence of each resident so enrolled and provide monthly updates of students who enroll or terminate enrollment in the private school; and (6) meet local health and safety standards. See Ga. Code Ann. § 20-2-690(b). Religious schools are also considered private schools and are subject to the same requirements. See id. at (b)(1). Georgia law does not appear to prohibit private schools from providing online or internet education apart from the Georgia Virtual School. However, Georgia law does not appear to specifically allow a private school to provide classes online.

The requirements for home schooling indicate parents or guardians may teach their children at home in a home study program, provided the parent(s) or guardian satisfies certain requirements. See Ga. Code Ann. § 20-2-690(c). Parents may teach their own children and not those children of others, but parents may also employ a tutor. See id. at (c)(3). Georgia law does not appear to contemplate online teaching of a child by his or her parent located elsewhere or an online tutor hired by the parents, but nor does it explicitly prohibit such methods of education. We note the Georgia Virtual School provides special programs for home school students with the payment of tuition costs. See http://www.gavirtualschool.org/Home/ParentInformation/tabid/141/Default. aspx (visited Feb. 20, 2010) (viewing subtab for Home School Students). However, because the Georgia Virtual School does not give credits, the student attending such courses would have to apply to receive credit for such courses from the local school board, as would any other student.

Kentucky:

With certain exceptions, parents, guardians, or other persons having custody or charge over any child between the ages of six (6) and sixteen (16) must send the child to a regular public day school or to the public school that the board of education of the district makes provision for the child to attend. See Ky. Rev. Stat. Ann. § 159.010(1) (West 2009). A child within the compulsory school age is exempt from the requirement of attending a regular public day school if the child: (a) has graduated from an accredited or an approved four (4) year high school; (b) is enrolled and in regular attendance in a private, parochial, or church regular day school; (c) is fewer than seven (7) years old and is enrolled and in regular attendance in a private kindergarten-nursery school; (d) has a physical or mental condition that prevents or renders inadvisable attendance at school or application to study; (e) is enrolled and in regular attendance in private, parochial, or church school programs for exceptional children; or (f) is enrolled and in regular attendance in a state-supported program for exceptional children. See Ky. Rev. Stat. Ann. § 159.030(1) (West 2009). Thus, Kentucky recognizes a variety of school programs in addition to regular public school.

Within its laws for special school programs, Kentucky has created the Kentucky Virtual High School (KVHS), which involves secondary-level instructional programs or courses offered by the Kentucky Department of Education through the Internet and other online, computer-based methods. See Ky. Rev. Stat. Ann. § 158.007(11) (West 2009); see also http://www.kyvs.org/ webapps/portal/frameset.jsp?tab_id=_104_1 (visited Mar. 8, 2010). Students may take advanced-placement courses through the KVHS. See Ky. Rev. Stat. Ann. §§ 158.622, 158.847, 160.348 (West 2009). Also, children confined to home or the hospital may use the KVHS to continue course credit. See 704 Ky. Admin. Regs. 7:120 § 4(3)-(4) (2009). However, instruction through the KVHS for confined students is in addition to a minimum of two (2) visits with the confined student per week lasting at least one (1) hour each. See id. at § 4(4). This regulation, however, does not define the substance of what these “visits” must entail or whether they are by a teacher or an administrative representative of the school. A student may be in attendance if the he or she is participating in an offsite virtual high school class or block. See 702 Ky. Admin. Regs. 7-125 § 1(4)(c) (2009). However, to graduate from high school, each student must complete an individual learning plan that emphasizes career development and must have a total of at least twenty-two (22) credits, and after the graduating class of 2012, each student must have demonstrated performance-based competency in technology. See 704 Ky. Admin. Regs. 3:305 §§ 1-2 (2009).

Private and parochial schools must at all times be open to inspection by directors of pupil personnel and officials of the Department of Education. See Ky. Rev. Stat. Ann. § 159.040 (West 2009). To ensure compliance with its compulsory attendance law, Kentucky requires each private, parochial, or church regular day school to notify the local board of education of those students in attendance at the school. See Ky. Rev. Stat. Ann. §§ 159.030(1)(b), 159.040, 159.160 (West 2009). However, if a school declines to notify the local board of education of those students in attendance, that school must notify each student’s parent or legal guardian in writing and the parent or legal guardian must then give proper notice to the local board of education. See Ky. Rev. Stat. Ann. § 159.030(1)(b) (2009). Further, any private, parochial, or church school may voluntarily comply with curriculum, certification, and textbook standards established by the Kentucky Board of Education and be certified upon application to the board by such schools. See Ky. Rev. Stat. Ann. § 156.160(4) (West 2009); 704 Ky. Admin. Regs. 10:022 § 3 (2009). Further, private and parochial schools must teach courses in the English language and offer instruction in the several branches of study required to be taught in the public schools of the state. See Ky. Rev. Stat. Ann. § 158.080 (West 2009). Except in those school districts operating a year-round school program, the term of the private or parochial school must not be for a shorter period in each year than the term of the public school provided in the district in which the child attending the school resides. See id. In school districts that operate a year-round school program, the minimum term of private and parochial schools must be one hundred eighty-five (185) days. See id. Kentucky law is silent on whether or not a private, parochial, or church school may provide online education.

Mississippi:

A parent, guardian, or custodian of a child in Mississippi must cause his or her child to enroll in and attend a public school or legitimate nonpublic school for the period that the child is of compulsory school age, except in certain limited circumstances. See Miss. Code Ann. § 37-13-91(3) (West 2009). The limited circumstances when a child is not compelled to attend a public or legitimate non-public school include when a child is: (a) physically, mentally or emotionally incapable of attending school as determined by an appropriate school official based upon sufficient medical documentation; (b) enrolled in and pursuing a course of special education, remedial education, or education for handicapped or physically or mentally disadvantaged children; or (c) being educated in a legitimate home instruction program. See Miss. Code Ann. § 37-13-91(3)(a)-(c).

Mississippi has also created the Mississippi Virtual Public School (MVPS) Program. See Miss. Code Ann. § 37-163-3(2) (West 2009); see also 36-000-112 Miss. Code R. pt. I (Weil 2009). The intent of this school is to provide Mississippi families with an alternative choice to access additional educational resources to improve academic achievement. See Miss. Code Ann. § 37-163-3(2) (West 2009); see also 36-000-112 Miss. Code R. pt. I. The MVPS is a public school and treatment and resources on par with other public schools in the state. See id. The MVPS’ website indicates it is a web-based educational service offered by the Mississippi Department of Education to provide Mississippi students with access to a wider range of coursework, greater flexibility in scheduling, and an opportunity to develop their capacities as independent learners. See http://www.mvps.mde.k12.ms.us/about.html (visited Mar. 7, 2010); see also 36-000-112 Miss. Code R. pt. I (Weil 2009). All students in grades 9 through 12 have access to free online courses through MVPS, with priority given to juniors and seniors. See http://www.mvps.mde. k12.ms.us/about.html (visited Mar. 7, 2010). However, the MVPS does not offer online courses in subjects that are tied to standardized subject-area tests, such as algebra I, biology I, English II, or U.S. history -- students may take non-core content courses for elective credit only. See id. The goals of the MVPS program are to provide additional Advanced Placement (AP) course options to school districts, offer students an alternative to traditional learning, enhance educational technology use in the schools, and assist school districts in offering courses in subject areas where teachers are limited or nonexistent. See id. The MVPS targets a variety of students from the highly gifted to the disadvantaged for its online courses. See id. In particular, the MVPS is designed to enable public schools to support students who are unable to attend school for medical or other reasons, students who are interested in taking AP courses or other courses not offered in their school, and students who need intervention or accommodations or are in alternative schools. See id. As of 2010, it appears that the MVPS only provides courses for students in high school, see http://www.mvps.mde.k12.ms.us/spring2010.html (visited Mar. 7, 2010), and requires students to have adequate keyboard skills, see http://www.mvps.mde.k12. ms.us/faq.html (visited Mar. 7, 2010). Through the MVPS program, public school students in Mississippi may take some, but not all, courses online.

A “nonpublic school” in Mississippi is an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members, and students, which is in session each school year. See Miss. Code Ann. § 37-13-91(2)(i) (West 2009). This definition includes, but is not limited to, private, church, parochial, and home instruction programs. See id. The Mississippi Board of Education may accredit non-public schools if requested. See Miss. Code Ann. § 37-17-7 (West 2009). Such accreditation of non-public schools is outlined in the Mississippi Administrative Code. See 36-000-070 Miss. Code R. §§ 1.0-10.5 (Weil 2009). Otherwise, nonpublic schools in Mississippi may be accredited by one or more nonpublic school association(s) or group(s). See Miss. Code Ann. § 37-17-9 (West 2009). Finally, Mississippi has established a program to provide for financial assistance to children attending nonsectarian private schools. See Miss. Code Ann. § 37-51-1 et seq. (West 2009).

The Mississippi Legislature has provided that private education providers may be selected by the State Board of Education to operate virtual school programs in the state, which will be overseen by the State Department of Education. See Miss. Code Ann. § 37-163-3(2) (West 2009). Thus, any private school (private, church, parochial, and home instruction programs, see Miss. Code Ann. § 37-13-91(2)(i) (West 2009)) may apply for approval to operate a virtual school in Mississippi. See Miss. Code Ann. § 37-163-3(2). Also, this law would appear to allow a private entity not already operating a private school in Mississippi to apply and obtain approval to operate a virtual school in Mississippi. See id.

North Carolina:

North Carolina provides for free public education throughout the state for all students. See N.C. Gen. Stat. Ann. § 115C-1 (West 2009). Public schools statutes include provisions for education to students with disabilities, see N.C. Gen. Stat. Ann. § 115C-107.6 (West 2009), and a system of charter schools to improve learning opportunities, see N.C. Gen. Stat. Ann. § 115C-238.29 (West 2009). Also, North Carolina has a goal of improving education, one method of which is to establish a virtual high school. See N.C. Gen. Stat. Ann. § 116C-4 (West 2009). To that end, the Governor of North Carolina in 2002 established a commission to establish the North Carolina Virtual Public School (NCVPS). See http://ncvps.org/about/history/ (visited Feb. 23, 2010). The purpose of the NCVPS is to provide courses that students cannot take at their local schools, to augment a student’s local school’s program of study. See id. The program also allows home-bound or hospital-bound students to remain on schedule to graduate on time or enable students to graduate from high school in three years. See id. Students are taught by North Carolina-certified teachers and the grades that they earn in their NCVPS course will transfer to their local school and become part of their academic record. See http://ncvps.org/parentstudent/ (visited Feb. 23. 2010). This program was established to offer high school courses, but later expanded to add courses for middle school students and to provide college courses for high school students seeking to earn college credits. See http://ncvps.org/about/history/ (visited Feb. 23, 2010). Courses at the NCVPS are available at no cost to all students in North Carolina public schools, Department of Defense schools, and schools operated by the Bureau of Indian Affairs. See id.

North Carolina recognizes three types of non-public schools: private church schools or school of religious charters, qualified non-public schools, and home schools. See N.C. Gen. Stat. Ann. §§ 115C-547, 115C-555, 115C-563 (West 2009). Qualified non-public schools have one or more of the following characteristics: (1) the school is accredited by the State Board of Education; (2) the school is accredited by the Southern Association of Colleges of Schools; (3) the school is an active member of the North Carolina Association of Independent Schools; and/or (4) the school receives no funding from the State of North Carolina. See N.C. Gen. Stat. Ann. § 115C-555. While recognizing the separation of church and state clause of the First Amendment to the U.S. Constitution, see N.C. Gen. Stat. Ann. § 115C-547, North Carolina law requires that both religious schools and qualifying non-public schools comply with certain attendance, health, safety, and minimum testing requirements, see N.C. Gen. Stat. Ann. §§ 115C-548-50, 115C-556-58 (West 2009). Each school must make and maintain annual attendance and disease immunization records for each pupil enrolled and regularly attending classes. See N.C. Gen. Stat. Ann. §§ 115C-548, 115C-556 (West 2009). The school must operate on a regular schedule during at least nine calendar months of the year, excluding reasonable holidays and vacations. See id. The courses of instruction must run concurrently with the term of the public school in the district and extend for at least as long a term. See id. The school must annually administer a nationally standardized test or other nationally standardized equivalent test measuring achievement in certain academic areas to all enrolled students in grades three, six, nine, and eleven. See N.C. Gen Stat. Ann. §§ 115C-549, 115C-550, 115C-557 (West 2009). Furthermore, no church or qualified non-public school that complies with the applicable statutes is subject to any other education-related law except that it must comply with state fire, safety, sanitation, and immunization requirements. See N.C. Gen. Stat. Ann. §§ 115C-554, 115C-562 (West 2009). Students attending private church schools/school of religious charters or qualified non-public schools are not eligible to attend the NCVPS or register for its classes. See http://ncvps.org/about/history/. North Carolina law does not appear to prohibit a private church, religious organization, or non-public school from offering educational instruction online. However, North Carolina law does not appear to specifically allow a non-public school to provide online instruction.

South Carolina:

South Carolina law provides that all parents shall cause their children to regularly attend school from the school year in which the child is five before September 1 until the child attains his or her seventeenth birthday or graduates from high school. See S.C. Code Ann. § 59-65-10(a) (2009). The school the child attends must be (1) a public or private school approved by the State Board of Education; (2) a member school of the South Carolina Independent Schools’ Association or some similar organization; (3) a parochial, denominational, or church-related school; or (4) another program that has been approved by the State Board of Education. See id.

Under South Carolina law, the terms “private school” means a school established by an agency other than the state, which is primarily supported by non-public funds, and is operated by individuals other than publicly-elected or appointed officials. See S.C. Code Ann. § 59-1-110 (2009). An attorney general opinion states that in areas where the compulsory school attendance act is applicable, the State Board of Education possesses authority to establish minimum standards to which private schools must adhere in order to gain Board approval. See 1967-68 S.C. Op. Atty. Gen. No 2585, p. 291. Our thorough review of South Carolina laws and regulations did not reveal minimum standards of attendance for private schools established by the State Board of Education. However, South Carolina law indicates all private schools must report to the county superintendent in which the school is located the number of students receiving instruction, the number of students in regular attendance, the number of teachers employed and, other facts that show the grade and amount of educational work performed in the private school. See S.C. Code Ann. § 59-13-130 (2009). These laws seem to apply to all private schools, including those run by churches, synagogues, religious sects, or other religious organization or institutions.

South Carolina law includes a more limited definition of private school in the context of providing grants to students to attend private or independent elementary or high schools that are not operated or controlled by any church, synagogue, sect or other religious organization or institution. See S.C. Code Ann. § 59-41-10(c) (2009).

In this regard, South Carolina provides that any student who desires to enroll in private school, that is, any non-religious private school, is entitled to receive a grant in the amount equal to the cost per pupil as certified by the governor. See S.C. Code Ann. § 59-41-20 (2009).

As an alternative to public or private schools, parents have three options in South Carolina for home schooling. See S.C. Code Ann. §§ 59-65-40(A); 59-65-45; 59-65-47 (2009). Under the first home schooling option, parents may home school their children if the district board of trustees of the district in which the child resides approves the instruction. See S.C. Code Ann. § 59-65-40(A). To receive the district board of trustees’ approval, a home schooling program must meet the following criteria:

(1) the parent (a) holds at least a high school diploma or the equivalent general educational development (GED) certificate or (b) has earned a baccalaureate degree;

(2) the instructional day is at least four and one-half hours, excluding lunch and recesses, and the instructional year is at least one-hundred eighty days;

(3) the curriculum includes, but is not limited to, the basic instructional areas of reading, writing, mathematics, science, and social studies and in grades seven through twelve, composition and literature;

(4) as evidence that a student is receiving regular instruction, the parent shall present a system for maintaining and maintain the following records for inspection upon reasonable notice by a representative of the school district:

a) a plan book, diary, or other written record indicating subjects taught and activities in which the student and parent engage;

b) a portfolio of samples of the student’s academic work; and

c) a record of evaluations of the student’s academic progress. A semiannual progress report including attendance records and individualized assessments of the student’s academic progress in each of the basic instructional areas specified in item (3) must be submitted to the school district;

(5) students must have access to library facilities;

(6) students must participate in the annual statewide testing program and the Basic Skills Assessment

Program approved by the State Board of Education for their appropriate grade level. The tests must be administered by a certified school district employee either with public school students or by special arrangement at the student’s place of instruction, at the parent’s option; and

(7) parents must agree in writing to hold the district, the district board of trustees and the district’s employees harmless for any educational deficiencies of the student sustained as a result of home instruction.

See § 59-65-40(A). These requirements must be met before parents may teach their children at home. See 1991 S.C. Op. Atty. Gen. 36, 1991 WL 474738, at *2-3 (Jan. 22, 1991). This law further provides that at any time the school district determines that the parent is not maintaining the home school program as required, the district board of trustees shall notify the parent to correct the deficiencies within thirty days. See § 59-65-40(A). If the parents do not correct the deficiencies within thirty days, the district board of trustees may withdraw its approval. See id.

The second home schooling option allows parents to teach their children at home “if the instruction is conducted under the auspices of the South Carolina Association of Independent Home Schools.” S.C. Code Ann. § 59-65-45. Under this type of home schooling, the State Department of Education conducts annual reviews of the standards of the South Carolina Association of Independent Home Schools to ensure that, at a minimum, the parents hold at least a high school diploma or GED, the school year is at least 180 days, and the curriculum includes at a minimum instruction in reading, writing, mathematics, science, social studies, and, in grades seven through twelve, composition and literature. See id.

Under the third home schooling option, South Carolina recognizes an alternate form of home education if the instruction is conducted under the auspices of an association for home schools with no more than fifty members. See S.C. Code Ann. § 59-65-47. This type of home schooling has the same requirements as those under the South Carolina Association of Independent Home Schools, except that additional parent reporting is also required. See id.

South Carolina has established the South Carolina Virtual School Program. See S.C. Code Ann. §§ 59-16-10 to 59-16-80 (2009). Any public, private, or home school student residing in South Carolina, who is twenty-one years of age or younger, is eligible to enroll in the South Carolina Virtual School Program. See S.C. Code Ann. § 59-16-15(B). Students may be awarded a maximum of three online initial credits in a school year, and no more than twelve online initial credits throughout high school, but the governing body of the student’s school district may grant a waiver to exceed the established limit. See S.C. Code Ann. § 59-16-15(C). The student’s local school district transcribes the student’s grade to his or her permanent record and transcript, whereas home school students and private school students receive a certified grade report indicating date, course, and final numeric grade from the South Carolina Virtual School Program or an entity approved by the State Board of Education. See S.C. Code Ann. § 59-16-15(D). Through this program, any student in South Carolina may take some of his or her instruction online. However, it does not appear that such instruction can supplant education through traditional public, private, or home school programs. South Carolina law does not specifically address whether private, church, or home schools can offer or employ online schooling independent of the South Carolina Virtual School Program.

Tennessee:

Under Tennessee law, every parent, guardian, or other legal custodian residing within the state having control or charge of any child between five and seventeen years of age, must cause the child to attend public or non-public school. See Tenn. Code. Ann. § 49-6-3001(c)(1) (West 2009). Tennessee has also established virtual education programs. See Tenn. Code Ann. §§ 49-16-101 to 49-16-105. Participation in a virtual education program by a student is at the discretion of the local education agency in which the student is enrolled or zoned to attend; however, only students who were enrolled in and attended a public school during the previous school year are eligible to participate in a virtual public education program. See Tenn. Code Ann. § 49-16-105. Students who are receiving hospital or homebound instruction also are eligible to participate. See id. Given these provisions, a student may receive part of all of his or her education through virtual education programs. The only local jurisdictions that appear to have instituted virtual education programs in Tennessee are Hamilton County, in which Chattanooga, Tennessee, is located, and Putnam County. See http://hcschools.org/vhs/ (visited Mar. 3, 2010); http://www.ena.com/files/Customer_Success_Stories/CSS10_Virtual Learning_PutnamCoTN.pdf (visited Mar. 3, 2010). The Hamilton County Virtual School (HCVS) offers core courses (Language Arts, Math, Science, Social Studies) to students in kindergarten through eighth grade and all core courses and several elective courses to students in grades nine through twelve. See http://hcschools.org/vhs/ (visited Mar. 3, 2010). This school also offers Virtual Dual Enrollment courses to high school juniors and seniors. See id. Under this program, the HCVS works with a student’s school by reporting grades to his or her school, which is then responsible for assigning credit, as appropriate. See id. Enrollees in the HCVS must obtain the principal’s signature on all registration requests in order to assure that the grades will be accepted for credit by that school. See id. Home-schooled students may have grades sent to their umbrella organizations or other appropriate credit-granting entity, if desired. See id. The Putnam County virtual learning program began more recently in January 2008, and offers courses similar to those offered students in Hamilton County. See http://www.ena.com/files/ Customer_Success_Stories/ CSS10_VirtualLearning_PutnamCoTN.pdf (visited Mar. 3, 2010). Thus, at least in Hamilton and Putnam Counties, Tennessee, children may obtain some form of online schooling.

In Tennessee, a “private school” is one that is accredited by, or a member of, an organization or association approved by the Tennessee State Board of Education as an organization accrediting or setting academic requirements in schools. See Tenn. Code. Ann. § 49-6-3001(c)(3)(A)(iii) (West 2009). Students may transfer among public schools or among Category I, II, or III private schools or Category IV non-public schools without loss of credit for completed work. See Tenn. Comp. R. & Regs. § 0520-01-03.03 (2009); Tenn. Comp. R. & Regs. § 0520-07-01.03 (2009). Category I schools are approved individually by the State Department of Education; Category II schools belong to an agency whose accreditation process is approved by the State Board of Education; Category III schools are regionally accredited by one of five accrediting organizations; and Category IV schools are “church related” schools. See Tenn. Comp. R. & Regs. § 0520-02-01.01(1)(a)-(d) (2009).

Tennessee allows home schooling, church-related private schools, and also a hybrid, i.e., home schools affiliated with church-related schools. See Tenn. Code. Ann. § 49-6-3050(a) (West 2009). A church school is defined as a school operated by a denominational, parochial, or other bona fide church organization that meets the standards of accreditation or membership in various organizations. See Tenn. Code. Ann. § 49-50-801 (West 2009). The state board of education and local boards of education cannot regulate the selection of faculty or textbooks or the establishment of a curriculum in church-related schools. See id. at (b); accord Tenn. Comp. R. & Regs. 0520-07-02.05(1) (2009). Tennessee regulations only require religious schools to: (a) comply with all city, county, and state rules and regulations, and codes regarding planning of new buildings, alterations, and safety; (b) comply with all rules and regulations of the Tennessee Department of Health and Environment regarding construction, maintenance, and operation of the school plant; (c) observe all fire safety regulations and procedures promulgated by the Tennessee Fire Marshal’s Office; (d) comply with the requirements that each child enrolled in school be vaccinated against disease; and (e) comply with the requirement that the names, ages, and addresses of all pupils in attendance be reported to the superintendent of the public school system in which the student resides. See Tenn. Comp. R. & Regs. 0520-07-02.05(2) (2009) (citing Tenn. Code Ann. §§ 49-6-3007, 49-6-5001 (West 2009) (regarding vaccination and attendance-reporting)).

Generally, a parent-teacher home school has extensive attendance, testing, and credential requirements. See Tenn. Code. Ann. § 49-6-3050(b). Such parents must:

(1) provide notice to the local director of schools of the parent-teacher’s intent to conduct a home school and submit the name, number, age and grade level of children involved, the location of the school, the curriculum to be offered and the proposed hours of instruction, and the qualifications of the parent-teacher;

(2) maintain attendance records, subject to inspection by the local director of schools, and submission of these records to the director of schools at the end of each school year;

(3) instruct for at least four (4) hours per day for the same number of instructional days as are required by state law for public schools;

(4) possess a high school diploma or GED by the parent-teacher conducting classes in kindergarten through grade eight;

(5) administer state board approved standardized tests required of public school students for the children’s respective grades;

(6) consult with the director of schools if the home school student falls three (3) to six (6) months behind the home school student’s appropriate grade level, based on the standard testing, design a remedial program for any child that falls (6) to nine (9) months behind the home school student’s appropriate grade level; or enroll the child in public school if the home school student falls more than one (1) year behind the home school student’s appropriate grade level; (7) possess at least a baccalaureate degree awarded by a college or university accredited by an accrediting agency or association recognized by the state board of education, by a parent-teacher conducting classes in grades nine through twelve (9-12). A parent-teacher may request an exemption from this requirement from the department on a year-to-year basis;

(8) notify in writing to the local director of schools by a parent-teacher conducting classes in grades nine through twelve (9-12) as to whether a college preparatory or general course of education will be taught to the home school student and a description of the courses to be taught in each year;

(9) submit proof to the local director of schools that the home school student has been vaccinated and has received any other health services or examinations as may be required by law generally for children in this state;

(10) Submit by the home school student entering public schools to the evaluation tests if the local system requires the tests, or the tests required by the state board of education for transfer students; and

(11) in the event of the illness of a parent-teacher, or the inadequacy of the parent-teacher to teach a specific subject, employ a tutor, having the same qualifications as a parent-teacher teaching that grade level or course.

See id. However, a home school affiliated with a church-related school, like a church school, has a much shorter and less stringent list of requirements than a parent-teacher home school, provided that the church-related school:

(1) is accredited by or a member of one of the organizations listed in the statute defining church-related schools at Tenn. Code. Ann. § 49-50-801;

(2) supervises the home school; and

(3) administers standardized achievement tests at the same time such tests are given in the regular day school.

See Tenn. Code. Ann. § 49-6-3050(a)(2)(A).

While the two counties mentioned above provide public online schooling, Tennessee law does not specifically address whether private, church-related, or home schools can independently offer or employ online schooling.

Mary Ann S~

Regional Chief Counsel

By: Jerome M. A~

Assistant Regional Counsel