BASIC (12-06)

PS 08005.040 Oklahoma

A. PS 05-247 Oklahoma State Law Requirements for Home Schooling (NH David O. H~, SSN ~, Aaron D. H~, Student) (OGC Legal Opinion No. 05-1735) - REPLY

DATE: September 23, 2005

1. SYLLABUS

attendance laws. To meet the requirements of the compulsory attendance statutes, the home school instruction must be supplied in good faith and be equal to that provided by the state, but there is no requirement that a home school teacher have a teaching certificate. A school day in Oklahoma consists of not less than six hours of school activities.

The child's parent or guardian must provide :

Evidence that the instruction that the child receives in his/her home school program equivalent to the instruction provided by the state; and

Documentation that the home school provides instruction for at least six hours per instruction day.

2. OPINION

The purpose of this memorandum is to respond to your request for our opinion regarding whether a specific home school would qualify under section 202 (d)(7)(C)(i) of the Social Security Act (the Act) as a school that provides elementary or secondary education as determined under Oklahoma law. See 42 U.S.C. § 402 (d)(7)(C)(i). Specifically, you asked whether Aaron D. H~, who is being home schooled by his mother, qualifies as a full-time student of an elementary or secondary school and, therefore, is entitled to receive benefits on the record of David O. H~. After reviewing the facts and relevant law, we do not have sufficient information to determine whether or not Aaron's home school qualifies as an educational institution under State law and, thus, whether Aaron's home school student status entitles him to benefits on Mr. H~ record./

According to your request, Aaron attained the age of eighteen in February 2005. He applied for Social Security auxiliary benefits on Mr. H~ record in April 2005, contending that he was still in school. The claim was processed in May 2005, but benefit payments have been delayed until a determination is made regarding whether Aaron's home school meets the educational institution requirements. Aaron submitted Form SSA-1372, Student's Statement Regarding School Attendance, on which he stated that he has been home schooled by his mother, Ms. Lori H~, since September 3, 2003, with the school term at issue commencing on August 30, 2004. The SSA-1372 also indicates that Aaron attends the home school full-time 30 hours per week with an expected graduation date of May 2005. The form is signed by Aaron and his mother. No school official has certified the form.

Additional materials you have submitted include an informational printout from the Oklahoma State Department of Education's website entitled "State Superintendent Sandy G~ Welcomes Homeschoolers." See http://www.sde.state.ok.us/pro/homesch.html. This website provides general information and resource links regarding home schooling in Oklahoma. One resource link from the website includes the requirements for high school graduation in Oklahoma. See "Earning Skills for Success, Oklahoma Requirements for High School Graduation" dated July 4, 2004, from the Oklahoma Department of Education (attached). This informational document references the State law requirements for graduation in Oklahoma. Id. There is also another printout from the Home Educators Resource Organization (HERO) of Oklahoma regarding the status of State law on home schooling. This self-described private not-for-profit organization operates a separate informational website for home schooling. See http://oklahomahomeschooling.org.

In an effort to further develop the facts, Mr. Johnie D~, an SSA employee, contacted Ms. H~ on May 11 and May 16, 2005. See computer query entitled "Report of Contact" dated May 11, 2005, and form SSA-5002, Report of Contact, dated May 17, 2005. Mr. D~ contacted Ms. H~ in order to obtain background information as to Aaron's home schooling. According to Ms. H~, Oklahoma State law does not require attendance records or progress testing for home schooled children. Id. Additionally, there is no requirement for home school instructors to register with the State. Id. Ms. H~ stated that she follows the State's school term with the latest being from August 30, 2004, to May 31, 2005. Finally, Ms. H~ stated that she offers instruction to Aaron 30 hours per week, or six hours per day for 180 days. Id.

As you know, the child of a wage earner may receive benefits after age eighteen if he is a full-time elementary or secondary school student. 20 C.F.R. § 404.350(a)(5). A student receiving home school instruction in accordance with the law of the state in which he resides is considered a full-time elementary or secondary school student. 20 C.F.R. §§ 404.367(a)(1), (c). As Aaron resides in Oklahoma, Oklahoma State law applies. Id.

Our research has found little in the way of State guidance regarding home schooling in Oklahoma. There is no comprehensive definition as to what constitutes a home school under State law. Our research indicates that the legal basis for home schooling in Oklahoma derives from the State's public education and compulsory attendance laws. The Oklahoma State constitution provides that, "[t]he Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated." Okla. Const. art XIII, § 1 (emphasis ours). However, the Oklahoma constitution goes on to state that, "[t]he Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the State who are sound in mind and body, between the ages of eight and sixteen years, for at least three months in each year." Okla. Const. art. XIII, § 4 (emphasis ours). In interpreting the aforementioned State constitutional sections, the Oklahoma Supreme Court stated that, "[i]t is beyond the power of the legislative agencies of this State, under our constitution, to require a parent to send his child to the public schools if he affords him reasonable educational facilities at a sectarian, denominational, or private school." Oklahoma RY. Co. v. St. Joseph's Parochial School, 127 P. 1087, 1088 (Okla. 1912). The Court did not define what they meant by the term "private school." Id.

The statutory section implementing compulsory school attendance provides that, "[i]t shall be unlawful for a parent, guardian, or other person having custody of a child who is over the age of five (5) years, and under the age of eighteen (18) years, to neglect or refuse to cause or compel such child to attend and comply with the rules of some public, private or other school, unless other means of education are provided for the full term the schools of the district are in session or the child is excused as provided in this section." Okla. Stat. Ann. tit. 70, § 10-105 (2005).

In interpreting a prior, but similar, version of the State's compulsory school attendance statute, the Oklahoma Criminal Court of Appeals concluded that so long as the child's education was not neglected, under the Constitution and laws of Oklahoma, parents have a right to supervise the education of their children if it is done in "a proficient and fitting manner." See Wright v. State, 209 P. 179, 180 (Okla. Crim. App. 1922)(reversing a criminal conviction under the State's compulsory attendance statute for defendant parents who home schooled their children, one of whom was a former teacher). Additionally, the Court in Wright emphasized that whether such "independent facilities for education," apart from the public schools, are supplied in good faith and equivalent to those afforded by the State, are questions of fact for the jury and not questions of law for the court. Id. at 181. Building upon these prior cases, the Oklahoma Court of Criminal Appeals also concluded that while the State has a mandatory duty to provide for public education, the requirement to attend public schools is permissive if other means of education are provided. See Sheppard v. State of Oklahoma, 306 P.2d 346, 353 (Okla. Crim. App. 1957)(court reversing and dismissing criminal prosecution against parent who home schooled her children for violation of State compulsory attendance statute even though parent's qualifications to teach were never clearly defined).

In 1973, the Oklahoma Attorney General's office stated that the test in Oklahoma for determining whether a private school or "home instruction" meets the requirements of the State's compulsory school attendance statute is that, ". . . the instruction must be supplied in good faith and equivalent to that afforded by the State." See 73 Op. Att'y Gen. 129 (1973)(citing to Wright v. State, 209 P. at 180-81). Additionally, the Oklahoma Attorney General's Office concluded that there is no requirement that a private teacher or tutor hold a teaching certificate. Id.

Neither the Attorney General's opinion nor Oklahoma case law have defined the term "equivalent" in the context of providing home instruction. However, the term equivalent has been defined to mean (1) equal in value, force, amount, effect, or significance or (2) corresponding in effect or function; nearly equal; virtually identical. See Black's Law Dictionary at 561 (7th ed. 1999). New Jersey, which has a similar compulsory education law, requires a showing of academic equivalence. See State of New Jersey v. Massa, 231 A.2d 252, 257 (N.J. Co., June 1, 1967).

Based upon the evidence submitted, statutes, case law, and the 1973 Attorney General's opinion concluding that home instruction must be supplied in good faith and be "equivalent" to that afforded by the State, our Office cannot determine whether Aaron has been attending a home school in accordance with Oklahoma law. In order to evaluate whether Aaron's home school instruction has been supplied in good faith and is academically equivalent to that of the public schools, we need to know the curriculum he has been taught over the 2004-05 school term./ As a practical guide, we are referring to the previously mentioned Oklahoma State Department of Education's "Earning Skills for Success, Oklahoma Requirements for High School Graduation" dated July 2004. This publication accurately described the State law requirements for graduation that existed for the 2004-05 school term. See Okla. Stat. Ann. tit. 70, § 11-103.6. We note that the "Report of Contact" computer query dated May 11, 2005, from Mr. D~ indicated that Ms. H~ was going to submit a copy of her teaching curriculum.

Additionally, while Ms. H~ did not maintain time and attendance records regarding Aaron's home schooling, State law contemplates that if a child receives "other means of education," it must be provided for the full term the schools of the district are in session. Okla. Stat. tit. 70, § 10-105. Consequently, the Social Security Administration would need a statement from Ms. H~, as opposed to a report of contact query, documenting that she taught Aaron for six hours per day for at least 175 days. See Okla. Stat. tit. 70, § 1-109 (2005)(a school year for all public schools in Oklahoma shall consist of at least 180 days of instruction reduced up to 5 days for teacher professional development); see also Okla. Stat. Ann. tit. 70, § 1-111 (2005)(a school day shall consist of not less than 6 hours of school activities). Finally, form SSA-1372, Student's Statement Regarding School Attendance, requires that the form be certified by a school official. We suggest that the form be properly completed in accordance with its own instructions.

The information you have provided does not establish that Aaron has been home schooled in accordance with State law and procedures. Accordingly, we cannot conclude that Aaron qualifies as a full-time student according to Oklahoma State law.

Tina M. W~
Regional Chief Counsel
By: _______________________
Thomas C. S~
Assistant Regional Counsel


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PS 08005.040 - Oklahoma - 05/28/2009
Batch run: 05/28/2009
Rev:05/28/2009