Citing 20 C.F.R. §404.367, we advised that while the laws of the state of Mississippi
recognized home schools as 'educational institutions' with statutory attendance and
enrollment requirements, where a home school was affiliated with a Chicago, Illinois,
correspondence school, further investigation would be necessary to determine if the
child was actually being taught by a parent or other individual in the home based
on the correspondence school's curriculum or whether the child was actually enrolled
in the correspondence school and only received instruction through the mail.
Your office has requested our opinion as to the following:
(1) Whether a home schooling situation in Mississippi qualifies under section 202
(d) (7) of the Social Security Act as a school that provides elementary or secondary
education as determined under the laws of the State of Mississippi;
(2) What requirements must be followed in home schooling situations; e.g., must specific
subjects be taught; must parent/guardian seek written approval from the school board;
must the home schooling parent/teacher be certified; are there any specific attendance
requirements or verification; is mandatory testing required? And
(3) If a student taught at home under the auspices of a "correspondence school," such
as American School, qualifies for student benefits based on home schooling.
Section 202 (d) (7) of the Social Security Act provides in pertinent part that:
(A) 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 Secretary (in accordance with regulations prescribed by him) in light of the
standards and practices of the schools involved
(C)(i) An "elementary or secondary school" is a school which provides elementary or
secondary education, respectively, as determined under the law of the State or other
jurisdiction in which it is located.
Your office has presented a situation where a minor child of high school age, in the
state of Mississippi, is receiving instruction at home through a correspondence school
headquartered in Chicago, Illinois. Your specific inquiry is whether this "home schooling"
would qualify as secondary school education under Mississippi statutes.
Mississippi statutes regarding compulsory school attendance are found at section 37-13-91
which provide as pertinent herein that:
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(2) The following terms as used in this section are defined as follows:
(d) "School day" means not less than five (5) and not more than eight (8) hours of
actual teaching in which both teachers and pupils are in regular attendance for scheduled
(e) "School" means any public school in this state or any nonpublic school in this
state which is in session each school year for at least one hundred fifty-five (155)
school days, except that the "nonpublic" school term shall be the number of days that
each school shall require for promotion from grade to grade.
(i) "Nonpublic school" for the purposes of this section shall mean 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.
(3) A parent, guardian or custodian of a compulsory-school-age child in this state
shall cause such child to enroll in and attend a public school or legitimate nonpublic
school for the period of time that such child is of compulsory school age, except
. . .
(c) When a compulsory-school-age child is being educated in a legitimate home instruction
The parent, guardian or custodian of a compulsory-school-age child described in item
(a), (b) or (c) of this subsection, or the parent, guardian or custodian of a compulsory-school-age
child attending any nonpublic school, or the appropriate school official for any or
all such children attending such school shall complete a "certificate of enrollment"
in order to facilitate the administration of this section.
* * *
For the purposes of this subsection, a legitimate nonpublic school or legitimate home
instruction program shall be those not operated or instituted for the purpose of avoiding
or circumventing the compulsory attendance law.
Since section 37-13-91(2)(i) defines a "nonpublic school" to include home instruction
programs, Mississippi does acknowledge that a home instruction program is a school
pursuant to State law.
However, we noted that there is a statement from the truant officer for the county
where the child applicant lives indicating that Mississippi does not monitor a child's
attendance in a home school setting. We contacted the State superintendent's office
and raised a question as to how the State determined whether a home school was operated
for the purpose of avoiding compulsory attendance laws in violation of Mississippi
law. The response was essentially that no investigations were instituted unless a
complaint was made. If, as it appears, that there is very little monitoring or enforcement
of attendance at home schools in the State of Mississippi, the Social Security Administration
(SSA) can investigate and verify a child's attendance information utilizing the statutory
provisions for attendance.
There are no statutory requirements placed on home schools in Mississippi with respect
to testing of students, teacher certification, or basic curriculum requirements. As
noted earlier, while there are compulsory attendance and enrollment requirements,
home schooling is acknowledged, but generally unregulated within the State. We also
noted that Paragraph 10 of section 37-13-91 states:
Notwithstanding any provision or implication herein to the contrary, it is not the
intention of this section to impair the primary right and the obligation of the parent
or parents, or person or persons in loco parentis to a child, to choose the proper
education and training for such child, and nothing in this section shall ever be construed
to grant, by implication or otherwise, to the State of Mississippi, any of its officers,
agencies or subdivisions any right 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 the State;
and this section shall never be construed so as to grant. by implication or otherwise,
any right or authority to any State agency or other entity to control, manage, supervise,
provide for or affect the operation, management, program, curriculum, admissions policy
or discipline of any such school or home instruction program (emphasis added).
The preceding provision essentially allows home schools to operate unregulated and
with no monitoring by any officials within the State of Mississippi. Consequently,
we are of the opinion that even a home school based on a correspondence course would
be considered a school that provides elementary or secondary education in the State
of Mississippi and would qualify as a school under section 202(d)(7) of the Social
Security Act. We also feel that the SSA probably will have to obtain attendance information
from sources other than State or local school officials.
Concurrent with the issues you raised, is a concern we have with respect to how the
'correspondence school' operates. 20 C.F.R. §404.367 provides in pertinent part that:
"You are a full-time elementary or secondary school student if you meet all the following
* * *
(b) You are in full-time attendance in a day or evening non-correspondence course
and are carrying a subject load which is considered full-time for day students under
the institution's standards and practices, with scheduled attendance at the rate of
at least 20 hours per week and a course of study which is at least 13 weeks in duration."
Since the course of study is through a correspondence program, we are of the opinion
that further development is warranted to also determine if the child is actually enrolled
in the correspondence program and receives instruction through the mail or whether
the parent/instructor just receives the subject materials and other information which
is then utilized as a resource or guide in instructing the child at home. If the parent
or another individual is the actual instructor, then the child can be considered enrolled
in a home school and can be found eligible for Social Security benefits (if attendance
information is verified).