In an informal note dated April 23, 1996, you requested that OGC address three specific
question. The questions, and the answers to those questions are as follows:
(1) Whether a home schooling situation in Idaho qualifies under section 202(d)(7)
of the Social Security Act as a school that provides elementary or secondary education
as determined under the law of the state of Idaho.
Brief answer: Home schooling of a elementary or secondary school student in Idaho
may qualify under section 202(d)(7)(A) of the Social Security Act ("The Act").
Discussion: Idaho law compels school attendance. Idaho Code 33-202 states, in pertinent
part, that "unless the child is otherwise comparably instructed, the parent or guardian
shall cause the child to attend a public, private or parochial school..." The phrase
"comparably instructed" is interpreted to mean home schooling. Additionally, in 33-203,
the Idaho Code recognizes home schooling as follows"
(9) A non-public student is any student who receives educational instruction outside
a public school classroom and such instruction can include, but is not limited to,
a private school or a home school.
Under The Act 202(d)~7) (I), elementary or secondary school is defined as a "school"
which provides elementary or secondary education as determined under the law of the
state in which it is located. Idaho recognizes home schooling under this definition.
Thus, while home school situations may provide legitimate instruction, which Idaho
has codified is equivalent to public or private school attendance, a home schooled
student must still meet the full time requirements that a public or private school
student must meet under 202(d)(7)(A) of The Act as well as age requirements and other
definitions of student under The Act.
(2) If the requirements in 20 C.F.R. 404.367(b) regarding scheduled attendance of
at least 20 hours per week and a course of study of 13 weeks are met by students enrolled
in home schooling situations in Idaho, including "dual attendance" arrangements.
Brief Answer: This is a question that must be addressed on a case-by-case basis, depending
on the facts of each case. There should be a process by which the home school provider
(in conjunction with the school if there is dual enrollment) will certify the hours
and weeks requirement of 20 C.F.R. 404.367(b) for Social Security.
Discussion: In the present case, the child's mother indicates that she home teaches
her son twenty-five hours per week and he attends three daily classes at the public
school for three hours per day. This report is consistent with the report from the
local high school that he attends, or has attended, public school for fifteen hours
per week. Additionally, both the mother's report and the school report indicate that
this arrangement had been in place longer than thirteen weeks. Therefore, in the present
case, it appears as though the requirements in 20 C.F.R. 404.367(b) are fulfilled.
(3) What requirements must be followed in home schooling situations; e.g., must specific
subjects be taught; are students tested; must parents seek written approval from the
school board; are there any specific attendance requirements or verification.
Brief Answer: The Idaho Code does not specifically address the requirements of home
schooling situations. Various provisions of the Code address attendance of classes
and requirements of instruction, etceteras. Presumably, these same requirements apply
to an individual's education, whether or not they are in a public, private or home
school situation. They are apparently determined at a local district level.
According to electronic legal research, the only two provisions of the Idaho Code
that address home schooling are 33-203 (9) and 39-1201. There are no administrative
provisions that implement home schooling pursuant to the Code. There are two cases
in Idaho case law that address home schooling. In a 1995 case, the appeals court of
Idaho addressed an issue where a home schooling mother claimed she adhered to l.c.
33-202 which requires that a child between seven and fifteen years of age must be
instructed in subjects commonly and usually taught in the public schools of the state
of Idaho, and if the child's parent or guardian fails to provide this instruction,
the child must attend public, private or parochial school during the school year.
Miller v. Mangus, 893 P.2d 823, 826 (Idaho App. 1995). Additionally, a 1989 case addresses penalties
under l.C. 33-205 that are codified for parents or guardians who do not comply with
l.C. 33-202. Bates v. State, 785 P.2d 660, 665 (Idaho App.1989). The Bates case states that "whenever it shall come to the attention of the board of trustees
of any school district that the parents or guardians of any child are failing to meet
the requirements of section 33-202, a petition shall be filed with the [magistrate]
court of the county in which the child resides, as provided in section 33-205." Id.
To directly answer your questions, what specifically must be taught, according to
the Bates case, are subjects that must be comparable to that of instruction in the public schools.
The Bates court said that anyone sincerely desiring to comply with the law has ready access
through the Department of Education to the list of subjects required to be taught,
and to the local school district's policies and regulations. Thus, whatever specific
subjects must be taught are at the designation of the each local school district.
As far as Social Security is concerned, the beneficiary should supply us with their
local district's policies and regulations and certify that these requirements are
being met in a manner that is satisfactory to that local school district.
It is not clear if or when students are required to be tested. In the Miller case, the court ordered academic testing. Under section 33-203, academic testing is
required if a dual- enrolled child wishes to participate in extra-curricular activities,
but testing does not appear to be otherwise required. Again, this would be an issue
that Social Security should inquire about with each local school district where a
home schooled beneficiary resides.
It does not appear that parents are required anywhere under the law to seek written
approval for a home schooling program. There are only consequences if the school district
becomes aware that the parents or guardians of any child are failing to meet the requirements
of section 33-202.
The specific attendance requirements for a home schooled child are in conformance
with the local public schools' attendance policies and regulations, pursuant to section
In summary, the regulations 20 C.F.R. 404.367(a) determines student eligibility pursuant
to the law of the state in which the child resides. Apparently the law in Idaho presumes
that someone is being home schooled according to the parameters established within
33-202, unless there is information to the contrary. Social Security should make that
same presumption, especially given reasonable proof by the parents or guardian on
behalf of the child.
1/ A private, denominational or parochial school in Michigan, according to the Private,
Denominational and Parochial Schools Act, is any school other than a public school
giving instruction to children below the age of sixteen years, in the first eight
grades, such school not being under the exclusive supervision and control of the officials
having charge of the public schools of the state. Mich. Comp. Laws Ann. ~ 388.552