In considering a claim for child's insurance benefits, you asked whether Casey U~
("Claimant") can be considered a full-time student in South Carolina. Her mother,
Jeanne U~, allegedly home schooled Claimant from ages 17 to 18 but, because of Claimant's
mother's religious beliefs, Claimant's mother did not comply with the reporting and
approval requirements of the State's home schooling laws. Specifically, you ask if,
based on the South Carolina Religious Freedom Act, the home school Claimant attended
from ages 17 to 18 met the requirements of the South Carolina law.
We have considered the evidence presented and the applicable federal and state law,
and conclude that the South Carolina Religious Freedom Act does not exempt home schooling
religious parents from complying with South Carolina's home schooling laws' reporting
and approval requirements. Therefore, Claimant would not qualify for benefits as a
full-time student in this case.
FACTS
Claimant filed an application for child and student benefits. The Social Security
Administration (SSA) paid Claimant child benefits until April 2005, the period before
she turned 18 years old. Claimant's mother indicated that from August 2004 through
May 27, 2005 (Claimant's stated graduation date), she home schooled Claimant 25 hours
a week at the Iona Academy, but failed to report her home schooling activities to
a home schooling organization, group, or to the local school board. Therefore, none
of these entities oversaw Claimant's home school during this time. Claimant's mother
stated that because of her religious beliefs and because Claimant turned the legal
age (age 17), which exempted her from compulsory public school education, she stopped
reporting to the home school association. Claimant's mother, however, alleges that
she continued home schooling Claimant and kept a record of Claimant's progress as
before until Claimant graduated. The file does contain Claimant's complete high school
transcript from the same address as Iona Academy, but the Iona Academy name itself
is not listed on the transcript. The transcript included in the file seems to indicate
that Claimant attended Iona Academy throughout high school. The transcript lists the
number of classes and subjects Claimant took, the grades she earned, and the total
number of credits she obtained while in high school.
However, the file does not contain any documentation that any home school association
approved Iona Academy before Claimant's mother started home schooling Claimant. Claimant's
mother was unable to provide certification from the local school board, which apparently
is in the Newberry district. Although Claimant's mother stated that she reported Claimant's
home school activities to the home school association before Claimant turned 17 years
old, David J~, the home school coordinator for the Newberry District School Board,
stated that there was no file or records for Claimant indicating that Claimant's parents
home schooled Claimant. He indicated that Claimant's parents may have gone through
an outside agency. We note that according to the South Carolina Department of Education's
website, Mr. J~ is the director of elementary education; George S~ is the director of middle and secondary education. Kathleen
C~ is the president of the South Carolina Association of Independent Home Schools
(SCAIHS). Mr. S~ or Ms. C~ may be better able to verify Claimant's mother's statements.
No report of further contact with an outside agency is in the file.
Assuming that Iona is a home school as indicated by Claimant's mother, it is still
unclear what type of home school Iona Academy is. For example, is Iona Academy a home
school that must be approved by the local school board? Is it a part of the SCAIHS?
Or is it a part of a home school association that is conducted under the auspices
of an association for home schools that has no fewer than fifty members? We attempted
to ascertain this by viewing the South Carolina Department of Education's website.
That website lists the names of all the home school associations under the relevant
home school laws. See http://www.myscschools.com/offices/sq/hsa.htm (visited November 14, 2005). Iona Academy is not included in this list of home school
associations, see South Carolina Department of Education, http://www.myscschools.com/offices/sq/hsa.htm (last visited November 16, 2005). We were unable to locate a list of the recognized
independent home schools that are a part of the SCAIHS on either the South Carolina
Department of Education's website or the SCAIHS' website. Iona Academy is also not listed as a public school or private school. See South Carolina Department of Education, http://www.myscschools.com/PublicInformation/alpha_list.cfm#I (last visited Nov. 14, 2005), South Carolina Department of Education, http://www.myscschools.com/PublicInformation/private/default.cfm?action=list (last visited Nov. 14, 2005). As shown below, the type of home school involved here
determines the type of proof Claimant needs to show she complied with South Carolina's
home schooling statutes.
Furthermore, it is unclear whether Claimant's home school was ever approved by the
local school district since Mr. J~ indicated that he had no such records on Claimant
and since the file shows no reported contact with other agencies. Lastly, though Claimant's
mother indicated that she stopped reporting Claimant to a home school association
because of her religious beliefs, it is unclear what her religious beliefs are and
how they affected her ability to report (or continue reporting) Claimant's home school
activities after Claimant turned 17 years old. As shown below, this fact probably
does not need further development as the courts really do not analyze the sincerity
of the person's religious beliefs.
For our analysis, we assume, based only on Claimant's mother's assertions and the
available information, that: 1) Claimant's mother herself home schooled Claimant throughout
high school; 2) Iona Academy is a home school as opposed to public or private school;
3) Claimant's mother reported Claimant's high school progress to a home school association
until Claimant turned 17; 3) she did not report Claimant's high school progress ever to the Newberry District School Board since Mr. J~ found no files; 4) she stopped
reporting Claimant's home school activities altogether after Claimant turned 17; and
5) she stopped reporting both because she believed she was not required to do so after
Claimant reached age 17 and because of her religious beliefs.
FEDERAL REQUIRMENT
To qualify for child's insurance benefits under the Social Security Act (Act), a claimant
who is not disabled must be under the age of 18 or a full-time elementary or secondary
school student and under the age of 19. See § 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1)(B)(i)(2005).[1] Claimant asserts that
she is entitled to child insurance benefits after age 18 because, at the time she
filed her application, she was a full-time high school student at a home school. As
previously mentioned, SSA has already paid Claimant child insurance benefits until
she turned age 17; however, the question is whether her benefits should continue after
age 17 since she alleges that she remained a full-time student in high school after
her 17th birthday. A child is in full-time attendance if she meets all of the following
conditions:
she attends a school which provides elementary or secondary education as determined
under the law of the State or other jurisdiction in which it is located. Participation
in the following programs also meets the requirements of this paragraph:
the child is instructed in elementary or secondary education at home in accordance
with a home school law of the state or other jurisdiction in which the child resides;
or
b) the child is in an independent study elementary or secondary education program
in accordance with the law of the State or other jurisdiction in which the child resides
which is administered by the local school or school district/jurisdiction.
2) The child is in full-time attendance in a day or evening noncorrespondence course
of at least 13 weeks duration and is carrying a subject load which is considered full-time
for day students under the institution's standards and procedures. If the child is
in a home schooling program, the child must be carrying a subject load which is considered
full-time for day students under standards and practices set by the State or other
jurisdiction in which the child resides;
3) To be considered in full-time attendance, the child's scheduled attendance must
be at a rate of at least 20 hours per week unless an exception to this rule applies.
If the child is in an independent study program, the child's number of hours spent
in school attendance are determined by combining the number of hours of attendance
at a school facility with the agreed upon number of hours spent in independent study.
The child may still be considered in full-time attendance if his or her scheduled
rate of attendance is below 20 hours per week if SSA finds that:
a) the school attended does not schedule at least 20 hours per week and going to that
particular school is the child's only reasonable alternative; or
b) the child's medical condition prevents him/her from having scheduled attendance
of at least 20 hours per week and there is appropriate medical evidence or a statement
from the school;
4) The child is not being paid by an employer who has requested or required that the
child attend the school;
5) The child is in grade 12 or below; and
6) The child is not subject to the provisions of § 404.468 for nonpayment of benefits
to certain prisoners and certain other inmates of publicly funded institutions.
See 20 C.F.R. § 404.367 (2005). Based on this provision and the relevant facts in this
case, the only issues here are: 1) whether Claimant attended a home school that meets
the criteria in the relevant state's home schooling laws, and 2) whether Claimant
would be considered a "full-time" student? Because Claimant resides in South Carolina,
we looked to South Carolina law for the answers.
ANALYSIS
A. Compliance with home schooling lawSouth Carolina law provides that all parents
shall cause their children to regularly attend either a public or private school which
has been approved by the State Board of Education, or a member school of the South
Carolina Independent Schools' Association, or some similar organization, or a parochial,
denominational, or church-related school, or other program that has been approved
by the State Board of Education. See S.C. CODE ANN. § 59-65-10(a)(Thomson/West 2005). As an alternative to sending their children to a public or private school,
parents have three options in South Carolina for home schooling their children. See S.C. CODE ANN. §§ 59-65-40(A); 59-65-45; 59-65-47 (Thomson/West 2005). 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) (Thomson/West 2005). 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. . . .
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). All seven conditions must be met before the district board of trustees
is required to approve the home schooling program. Moreover, Section 59-65-40's requirements
must be met before parents may teach their children at home. See 1991 S. C. Op. Att'y Gen. 36, 1991 WL 474738, at ** 2-3 (Jan. 22, 1991). Section 59-65-40
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)(7). If the parents do not correct the deficiencies within 30 days,
the district board of trustees may withdraw its approval. Id.
Here, Claimant has not presented SSA with any proof that the district board of trustees
for the district in which she resides approved her home school instruction as required
in Section 59-65-40(A). However, there is also no indication that the district board
of trustees withdrew its approval. Claimant has not proven that her mother is a high
school graduate, has a GED certificate or earned a baccalaureate degree as required
under Section 59-65-40(A)(1). To further develop Claimant's claim, SSA can ask Claimant
to produce such evidence. Section 59-65-40(A)(4) also requires Claimant's mother to
present a system for maintaining and "maintain" certain records for inspection upon
reasonable notice by school district representative. For instance, Claimant's mother
must keep her plan book, diary, or other written record indicating the activities
in which she and Claimant engage, a portfolio of samples of Claimant's academic work,
and a record of evaluations of Claimant's academic progress. See § 59-65-40(A)(4). Because Claimant's mother is required to maintain these records,
SSA can also request a copy of these items to prove that Claimant's mother actually
home school Claimant during the relevant period. We note, however, that section 59-65-40
does not require Claimant's mother to "report" or "submit" these particular items
(i.e. the plan book, diary, portfolio of samples of Claimant's academic work) to the
school district but only "maintain" them should a school district representative request
them. Therefore, although Mr. J~ indicated that he had no records that Claimant's
mother home schooled Claimant, the school district may not have these particular records
if a school district representative never copied them or never requested them. We
further note that the home instruction law does not authorize on-site visits to a
home before approval of a home instruction program, nor does it authorize subsequent
visits to determine whether the parents are meeting the requisite standards. See 1989 S. C. Op. Att'y Gen., No. 89-22, 1989 WL 406112, at **1-3 (Feb. 27, 1989).
However, section 59-65-40 does require Claimant's mother to submit to the school district,
semiannual progress reports including attendance records and individualized assessments
of Claimant's academic progress in each of the basic instructional areas. See § 59-65-40(A)(4)(c). Therefore, the school district should have copies of these documents.
SSA can also request Claimant's mother to submit copies of these progress reports
to prove that she complied with this reporting requirement and with the full-time
attendance requirements noted in 20 C.F.R. § 404.367 (b) - (c) to be eligible for
child insurance benefits as a full-time student. Section 59-65-40(A)(6) also requires
Claimant to participate in the annual statewide testing program and the Basic Skills
Assessment Program approved by the State Board of Education for her appropriate grade
level. SSA can also request that Claimant demonstrate she has satisfied this requirement.
Finally, Claimant has not proven she had access to library facilities or that Claimant's
mother and father agreed in writing to hold the district, its board of trustees and
employees harmless for any educational deficiencies. Again, these two standards must
be met before the statute permits Claimant's mother to home school Claimant. See § 59-65-40(A)(6)-(7). See 1991 S. C. Op. Att'y Gen. 36, 1991 WL 474738, at ** 2-3 (Jan. 22, 1991).
While Claimant has not provided all the specific documentation to SSA, she has presented
a copy of her transcript which shows that Claimant's mother taught Claimant math,
physical science, literature, history and composition in grades 9 through 12. It is
assumed that Claimant's elementary teacher(s) taught Claimant reading and writing.
With this assumption, Claimant would be able to prove that her curriculum met section
59-65-40(A)(3). The transcript also shows that Claimant's mother taught Claimant a
minimum of six subjects in each grade and that Claimant earned a total of 25 credit
hours while in high school. Thus, this transcript demonstrates that Claimant's instructional
day was at least four and one-half hours, excluding lunch and recesses. Claimant's
mother also indicated that she taught Claimant from August 2004 until May 2005 and
therefore, Claimant's instructional year was presumably at least one-hundred eighty
days. Consequently, Claimant has proven that she has not only satisfied section 59-65-40(A)(2)'s
attendance requirement but also that she met the full-time attendance requirement
noted in 20 C.F.R. § 404.367 (b) - (c). However, as a whole, Claimant's mother has
not submitted documentation showing that either she or Iona Academy complied with
all seven conditions noted in section 59-65-40 before home schooling Claimant. Therefore,
section 59-65-40 would not permit Claimant's mother to home school Claimant under
this first option for home instruction. Consequently, based on 20 C.F.R. § 404.367(a),
Claimant has not proven she attended a home school that complies with South Carolina's
first home schooling option. This fact, however, does not end the inquiry.
Instead of complying with section 59-65-40, parents may also home school their children
under the second home schooling option outlined in section 59-65-45. See S.C. CODE ANN. § 59-65-45 (Thomson/West 2005). That section allows parents to teach their children at home if the instruction
is conducted under the auspices of the SCAIHS. See Id. Bona fide membership and continuing compliance with the association's academic
standards exempt the home school from Section 59-65-40's requirements. Id. The South Carolina Department of Education conducts annual reviews of the association
standards to ensure that the association's requirements meet certain minimum standards.
Id. For example, the parent teaching the child must have a high school degree or GED,
the instructional year must be at least one hundred eighty days, and the curriculum
must include reading, writing, mathematics, science, social studies, and for grades
seven through twelve, composition and literature. Id. We accessed the website for SCAIHS and discovered that a high school student must
enroll in SCAIHS by a certain date, must register for a minimum of four courses, and
must also be tested annually using a standardized test. See South Carolina Association of Independent Home Schools, www.http://www.scaihs.org/high_school.htm (last visited Nov. 17, 2005). SCAIHS also has reporting requirements, which include:
1) two progress reports per year which gives a detailed summary of the course work
covered by the student during a specific time period; 2) a year-end report card; 3)
course credit record which provides an overview of all work completed in a course
with one form being submitted for each completed course; and 4) a copy of standardized
test scores. See South Carolina Association of Independent Home Schools, www.http://www.scaihs.org/high_school.htm (last visited Nov. 17, 2005).
In the instant case, if Iona Academy is associated with SCAIHS, then Claimant must
enroll in the SCAIHS. Consequently, Claimant or SCAIHS should have Claimant's enrollment
information establishing her bona fide membership. Claimant has not submitted evidence
that she was enrolled in SCAIHS, that Iona Academy is associated with the SCAIHS,
or that the Academy is in compliance with the SCAIHS' standards. Though Claimant's
transcript indicates that Claimant's mother taught Claimant the required subjects
and Claimant's mother's statement to SSA shows that Claimant attended school for the
requisite time, Claimant's mother has not submitted evidence of her educational level.
Additionally, if Iona is associated with the SCAIHS, then Claimant must submit the
above-mentioned reports and records to the SCAIHS. SSA can thus request these documents
to demonstrate Claimant's continuing compliance with the association's academic standards.
Again, bona fide membership and continuing compliance with the SCAIHS' academic standards
must be present before section 59-65-45 can exempt Iona Academy and Claimant from
section 59-65-40's requirements. See § 59-65-45. Thus, if Claimant presents SSA with the requisite proof that she and
her home school both complied, and continued to comply, with the requirements in this
second home schooling option, then she would meet 20 C.F.R. § 404.367(a) which again
requires a child claimant to prove she attended a home school that satisfies South
Carolina's home schooling law.
If Claimant cannot comply with the second home schooling option, the third and final
home schooling option provides that, in lieu of meeting the statutory home schooling
requirements of sections 59-65-40 or 59-65-45, parents or guardians may teach their
children at home if the instruction is conducted under the auspices of an association
for home schools that has no fewer than fifty members and that meets specified requirements.
See S.C. CODE ANN. § 59-65-47(Thomson/West 2005). Again, there must be bona fide membership and continuing compliance with the
academic standards of the association in order to exempt the home school from the
further requirements of sections 59-65-40 and 59-65-45. See § 59-65-47. The South Carolina Department of Education also conducts annual reviews
of the association's standards to ensure that the association's requirements meet
certain minimum standards. Id. These minimum standards require that: 1) the parent hold a high school diploma or
a GED certificate; 2) the instructional year be at least one hundred eighty days;
3) the curriculum includes reading, writing, mathematics, science, and social studies
and in grades seven twelve, composition and literature; and 3) the parent-teacher
maintain a plan book, diary, or other written record indicating subjects taught and
activities in which the student and parent engage, a portfolio of samples of the student's
academic work, and a semiannual progress report including attendance records and individualized
documentation of the student's academic progress in each of the basic instructional
areas (i.e. reading, writing, mathematics, science, and social studies and in grades
seven through twelve, composition and literature). Id. Here, because Claimant's mother has not presented the required documentation concerning
Iona Academy's affiliation or its or her compliance with section 59-65-47, Claimant
has not satisfied this alternate statutory method for home schooling Claimant. If
Claimant presents SSA with the requisite proof that her home school both complied,
and continued to comply, with the requirements in this last home schooling option,
then she could meet 20 C.F.R. § 404.367(a).
Therefore, in response to your first question of whether, based on the South Carolina
law, the home school Claimant attended from ages 17 to 18 met the requirements of
the South Carolina law, we conclude that Claimant has not submitted enough information
to show she has met this requirement. Based on the sparse information Claimant has
provided, she has not proven that she met all of South Carolina's home schooling law's
criteria.
B. Effect of Religious Freedom Act
You next ask whether Claimant would be exempt from satisfying South Carolina's home
schooling laws based on the South Carolina Religious Freedom Act (SCRFA). This question
is relevant both in determining whether the SCRFA would exempt Iona Academy or Claimant
from meeting all of the home schooling requirements Claimant's mother must meet to
home school Claimant and in determining whether Claimant would be considered a full-time
student. Claimant's mother concedes that she did not continue to report Claimant's
home school activities after Claimant became 17. She contends that she stopped reporting
first because the South Carolina compulsory education law no longer required Claimant
to be in school after age 17. Although you asked us to inquire only as to whether
the SCRFA would exempt Claimant's noncompliance with the home schooling laws during
the relevant period, we decided to also ascertain whether this secular excuse that she was no longer required to attend school would also justify Claimant's
noncompliance. We believe that the answer would be in the negative. Section 59-65-10(A)
provides that all parents or guardians must require their children or wards to regularly
attend a state-board-approved school from the school year in which the child or ward
is five years of age before September first until the child or ward attains his seventeenth
birthday or graduates from high school. § 59-65-10(A). Thus, a child need not remain
in school after turning 17 even if he does not graduate, and a child who graduates
before turning 17 need not remain in school. Thus, since Claimant turned 17, she was not
required to remain in high school. However, the home schooling statutes still required Claimant to comply with their attendance and reporting requirements
since Claimant voluntarily remained in high school after turning 17. See §§ 59-65-40(A)(2); 59-65-45; 59-65-47; Lawrence v. South Carolina State Bd. of Ed., 412 S.E.2d 394, 395 n. 1 (S.C. 1991)(noting in dicta that the home schooling programs
have their own attendance requirements since these programs must have an instructional
day of at least four and one-half hours, excluding lunch and recesses, for at least
one hundred eighty days a year). As previously indicated, each of the home schooling
law requires some sort of continuing compliance with its individual requirements.
See §§ 59-65-40; 59-65-45; 59-65-47. We note, however, that none of the home schooling
laws has minimum or maximum age limitations. See §§ 59-65-40; 59-65-45; 59-65-47; see also generally S.C. CODE ANN. § 59-63-20 (providing that persons who are under the age of five or
more than twenty-one years old cannot go to public schools unless an exception to
that rule applies). Since Claimant choose to attend a home school instead of a public
school and choose to remain in school after turning 17, the compulsory education law
itself would not exempt Claimant's mother from complying with the home schooling laws.
To the contrary, the home schooling laws required Claimant to comply with all requirements,
including attendance.
Next, you ask whether, based on the SCRFA, Claimant and her mother are exempt from
complying with the above-mentioned home schooling requirements, particularly the reporting
and approval requirements, if they alleged conflict with their religious beliefs.
We first note that nothing in any of the home schooling statutes explicitly exempts a parent from complying with its requirements. See §§ 59-65-40; 59-65-45; 59-65-47. Thus, we looked to the SCRFA to determine if it
would so exempt Claimant and her mother.
The SCRFA, which became effective on June 1, 1999, prohibits the State from substantially
burdening an individual's exercise of religion, even if the burden comes from a rule
of general applicability, unless the State shows that applying the burden to the person
furthers a compelling state interest and is the least restrictive means of furthering
that compelling state interest. See S.C. CODE ANN. § 1-32-40 (Thomson/West 2005). The SCRFA defines exercise of religion as the exercise of religion under the
First Amendment to the United States Constitution or Article I, Section 2 of the State
Constitution. See S.C. CODE ANN. § 1-32-20. The SCRFA also defines "state" to mean the State of South
Carolina and any "[d]epartment, agency, board, commission, instrumentality, entity,
or officer, employee, official of the State . . . or any person acting under color
of law." Id. This Act applies not only to all state and local laws and ordinances but also to
their implementation, whether statutory or otherwise and whether adopted before or
after the Act's effective date. See S.C. CODE ANN. § 1-32-60(A) (Thomson/West 2005). Thus, the SCRFA applies to the South Carolina Department of Education, the
local school board and all their employees as well as to all of the home schooling
laws and their implementation. Thus, if Claimant meets her burden and South Carolina
fails to meet its burden, then the SCRFA would provide Claimant and her mother an
exemption or defense to complying with any of the home schooling requirements that
conflict with their religious beliefs.
The South Carolina legislature indicated that it enacted the SCRFA to restore the
compelling interest test announced in two Supreme Court decisions, Wisconsin v. Yoder, 406 U.S. 205 (1972) and Sherbert v. Verner, 374 U.S. 398 (1963), and to guarantee that that test would be imposed on all state
and local laws and ordinances in all cases in which the free exercise of religious
is substantially burdened; . . . and to provide a claim or defense to persons whose
exercise of religion is substantially burdened by the State." S.C. CODE ANN. § 1-32-30
(Thomson/West 2005). Since the South Carolina legislature enacted the SCRFA to restore the compelling
interest test announced in Yoder and Sherbert, we looked first to those two cases to determine how to apply the compelling interest
test. Sherbert is factually distinguishable from this case as it involved constitutional challenges
to South Carolina's unemployment compensation law which denied benefits to an individual
who refused to accept employment which would require her to work on a Saturday against
her religious beliefs. 374 U.S. at 400. However, Sherbert is still instructive because it demonstrates the types of requirements that can "substantially
burden" a person's exercise of her religion and whether applying that burden to the
religious person furthered a compelling state interest and was the least restrictive
means of furthering that compelling state interest.
The Sherbert court held that denying the claimant unemployment compensation substantially burdened
the free exercise of the claimant's religion because: 1) her ineligibility derived
solely from her religious practice; and 2) it pressured the claimant to forego her
religious practice by forcing her to choose either between following her religion's
precepts and forfeiting benefits or abandoning one of her religion's precepts in order
to accept work. Id. at 403. The State in Sherbert then argued that it had an interest in avoiding the
filing of fraudulent claims by unscrupulous claimants feigning religious objections
to Saturday work which would dilute the unemployment compensation fund and also hinder
the scheduling by employers of necessary Saturday work. Id. The Sherbert court determined that the State had not proven it had a compelling state interest
enforced in the eligibility provisions of the unemployment compensation law that would
justify the substantial infringement upon the claimant's First Amendment rights. Id. at 406. The Sherbert court reasoned that, had these interests been adjudicated by
the lower courts below and were therefore properly before the United States Supreme
Court, these interests would still not be considered compelling enough to justify
infringing the claimant's First Amendment rights, especially where the State failed
to prove that no alternative forms of regulation could combat such abuses without
infringing upon First Amendment rights. Id.
While also distinguishable from the facts presented here, the facts in Yoder are more
analogous to those in the instant case. In Yoder, parents who were members of the Old Order Amish religion or the Conservative Amish
Mennonite Church were tried and convicted for violating Wisconsin's compulsory education
law, which required parents to send their children to public or private school until
they reached the age of 16. 406 U.S. at 207. The parents in Yoder argued that application of this law violated their rights under the First and Fourteenth
Amendments. Id. Unlike Claimant's mother here, the parents in Yoder gave specific reasons why sending their children to school pass the eighth grade
both violated their religious beliefs and negatively impacted their children, their
continued survival as a community, and their religion. Id. The State stipulated that the defendants' religious beliefs were sincere. Id. To determine whether applying the Wisconsin compulsory education law to the Amish
violated the Amish parents' constitutional rights, the United States Supreme Court
recognized the strength of both the parents' interest in the nurture and education
of their children and the state's interest in compulsory education. See 406 U.S. at 234 (cited in Lawrence, 412 S.E.2d at 395). In fact, the Yoder court stated that the state has two legitimate interests in the education of children:
1) to prepare its citizen to participate effectively and intelligently in our open
political system; and 2) to prepare its citizens to be self-reliant and self-sufficient
participants in society. See 406 U.S. at 221. However, the Yoder court noted that "where the parent's interest
in education is secular in nature rather than religious, the State may constitutionally
require compulsory education in a public or private school." Lawrence, 412 S.E. at 395 (citing Yoder, 406 U.S. at 232). The Yoder court further explained that even where parents may exempt their children from school
attendance on the ground of free exercise of religion, 'nothing limit[s] the power
of the State to promulgate reasonable standards' concerning the content of parent-provided
education programs." Lawrence, 412 S.E. at 395 (quoting Yoder, 406 U.S. at 235). The Yoder court held that the First and Fourteenth Amendment prevented a state from compelling
the Amish parents to cause their children to attend high school to age 16. See 406 U.S. at 235. However, the Yoder court believed that the state could instead establish "reasonable standards" concerning
the content of the continuing vocational education of the Amish children under parental
guidance, noting that several other states had just adopted plans to establish Amish
vocational schools. Id.
Though Yoder and Sherbert are instructional, courts have since severely limited these cases to the facts of
the case, or have distinguished Yoder and Sherbert. For instance, the United States Supreme Court later rejected the Sherbert test's general applicability. See Employment Division, Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 879-90 (1990)(holding, in a case involving Native Americans' religious
use of peyote that resulted in job termination and disqualification for unemployment
compensation, that the right of free exercise of religion did not relieve an individual
from complying with a valid and neutral law of general applicability on the ground
that the law proscribed, or prescribed, conduct forbidden by the individual's religious
beliefs and that generally applicable, religion-neutral laws that have the effect
of burdening a particular religious practice need not be justified by a compelling
government interest)(citing United States v. Lee, 455 U.S. 252, 263 n.3 (1982)); see also Burrow v. State, 669 S.W.2d 441, 443-44 (Ark. 1984)(rejecting parents' argument that the court should
apply the balancing test in Yoder because the court determined that Yoder involved "exceptional considerations" and that the parents did not show a religious
or cultural tradition comparable to that in Yoder); Jernigan v. State, 412 So.2d 1242, 1244-47 (Ala. Crim. Ct. App. 1982). In response to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) which provides
that federal activities that inhibit the free exercise of any religion must satisfy
a compelling government interest and must be the least restrictive means to accomplish
the purpose. See 42 U.S.C. § 2000bb et seq (1994). However, the United States Supreme Court later held that the RFRA was unconstitutional
only as it applied to state and local governments. See City of Boerne v. Flores, 521 U.S. 507 (1997). Thereafter and in response to Smith and Flores, South Carolina enacted its own state version of the RFRA, the SCRFA, to apparently
provide increased protection to the free exercise of religion and to restore the compelling
interest test. SCRFA's language closely resembles the RFRA. Compare 42 U.S.C. § 2000bb et seq with S.C. CODE ANN. § 1-32-10 et seq.
In light of this history and because we found no South Carolina cases interpreting
the SCRFA, we reviewed pre-Smith federal and other state cases that applied either the compelling state test or the
RFRA to estimate how South Carolina courts might apply the compelling interest test
in the home schooling context. See 1991 S. C. Op. Att'y Gen. 36, 1991 WL 474738, at ** 2-3 (Jan. 22, 1991)(looking to
other state court decisions to interpret South Carolina's compulsory education statute).
As will be shown below, our research revealed that, regardless of the test applied,
courts have almost entirely rejected home schoolers' constitutional and/or RFRA challenges
to state regulations of home schools, finding either that the particular state regulation
in question did not "substantially burden" the person's free exercise of their religion,
or that the state demonstrated it had a compelling interest. See e.g., Duro v. North Carolina, 712 F.2d 96, 97-99 (4th Cir. 1983)(rejecting a pre-Smith challenge to North Carolina's compulsory attendance law); Murphy v. Arkansas, 852 F.2d 1039, 1041-43 (8th Cir. 1988)(rejecting a pre-Smith Free Exercise claim challenging Arkansas's standardized testing requirement); Vandiver v. Hardin, 925 F.2d 927, 931-34 (6th Cir. 1991) (rejecting a post-Smith Free Exercise claim against a state regulation which required home schooled students
to pass equivalency exams to gain transfer credit from a religious home study program);
Swanson by and through Swanson v. Guthrie Independent Sch. District, 135 F.3d 694, 697-700 (10th Cir. 1998)(rejecting a post-Smith Free Exercise claim against a school district's policy prohibiting part-time public
school attendance); Blackwelder v. Safnauer, 689 F.Supp. 106, 128-35 (N.D.N.Y. 1988)(rejecting a pre-Smith Free Exercise challenge to New York's compulsory attendance law); Battles v. Anne Arundel County Bd. of Educ., 904 F.Supp. 471, 475-76 (D.Md. 1995) (rejecting a post-Smith Free Exercise challenge to Maryland's compulsory education law and home schooling
requirements); Jernigan, 412 So.2d at 1246 (rejecting a pre-Smith Free Exercise challenge to Alabama's home-school- teacher-certification requirement);
State v. Bigelow, 334 N.W.2d 444, 446-47 (Neb. 1983)(same); Burrow, 669 S.W.2d at 443-44 (rejecting a pre-Smith Free Exercise claim); State v. Anderson, 427 N.W.2d 316, 322-25 (N.D. 1988)(rejecting a pre-Smith Free Exercise challenge to Alabama's home-school- teacher-certification requirement);
State v. Riddle, 285 S.E.2d 359, 364-65 (W.Va. 1981)(same); but see Peterson v. Minidoka County Sch. Dist., 118 F.3d 1351, 1356-57 (9th Cir. 1997) (where a father who was reassigned by the
school from a principal to a teaching position due to his decision to home school
his children successfully challenged the decision by making a post-Smith Free Exercise claim); People v. DeJonge, 501 N.W.2d 127, 143-44 (Mich. 1993) (involving a successful post-Smith Free Exercise challenge to Michigan's teacher certification requirement). We found
no South Carolina cases applying the compelling interest test in the context of education.
SCRFA - Substantial burden
The SCRFA, on the other hand, requires first an analysis of whether the state regulation
"substantially burdens" an individual's exercise of religion. See § 1-32-40. Neither the SCRFA nor South Carolina state court cases outline what constitutes
a "substantial burden." See S.C. CODE ANN. § 1-32-20. However, in a South Carolina district court case that involved
Muslim inmates who brought a section 1983 action alleging Free Exercise and RFRA violations,
the district court noted that the United States Supreme Court defined "substantial
burden" as "where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith or where it denies such a benefit because of conduct
mandated by religious belief, thereby putting substantial pressure on an adherent
to modify his behavior and to violate his beliefs. . . ." Woods v. Evatt, 876 F.Supp. 756, 762 (D.S.C. 1995)(citing Thomas v. Review Bd., Indiana Employment Security Div., 450 U.S. 707, 717, 718 (1981)). Further, "the burden placed on the religious exercise
'must be more than an inconvenience; the burden must be substantial and an interference
with a tenet or belief that is central to religious doctrine.'" Woods, 876 F.Supp. at 762 (citing Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680 (1989)). Additionally, "the burden must be more than … a less desirable
situation." Woods, 876 F.Supp. at 762 (citing Prins v. Coughlin, 1994 WL 411016 (S.D.N.Y. Aug. 3, 1994)). In other words, "the practice places a
substantial burden on the religious exercises of [people] if it coerces them into
violating their religious beliefs," or if it compels them "'by threat of sanctions,
to refrain from religiously motivated conduct.'" Woods, 876 F.Supp. at 762. Thus, the first question here, is whether any of the home schooling
requirements that Claimant's mother is mandated to perform throughout the school year
constitute a substantial burden on her religious freedom.
According to two annotations, courts have perceived reporting requirements as a lesser
or minimal burden. See David Sweet, Annotation, Validity of State or Local Government Regulation Requiring
Private School to Report Attendance and Similar Information to Government-Post-Yoder Cases, 8 A.L.R.5th 875, § 2(b) (2005); Robin Cheryl M~, Validity, Construction, and
Application of Statute, Regulation, or Policy Governing Home Schooling or Affecting
Rights of Home-Schooled Students, 70 A.L.R.5th 169, § 2(a) (2005). Ms. M~ indicated
some courts have also held, despite constitutional challenges to the contrary, that
the following requirements included in a state's compulsory education statute or home
schooling statute were valid, either as a general rule or under the circumstances:
1) home visits by school personnel, 2) certification of the home-school instructors,
3) school authorities' approval of the home instruction, 4) application-for-approval
deadlines, 5) parental submission of progress reports on their home-schooled children,
and 6) the home-schooled children's submission to various kinds of standardized testing.
See M~, supra at §§ 2(a), 8, 9, 10(a)-10(b), 11(a)-(b), 12(a)-12(b), 13, 14. Some courts have held
that the home-school-visits-by-school-personnel requirement and the certification-of-home-school-instructors
requirement were invalid either as a general rule or under the circumstances. Id. As previously mentioned, the South Carolina Attorney General has indicated that South
Carolina's home instruction law does not authorize on-site visits to a home before
approval of a home instruction program, nor does it authorize subsequent visits to
determine whether the parents are meeting the requisite standards. See 1989 S. C. Op. Att'y Gen., No. 89-22, 1989 WL 406112, at **1-3 (Feb. 27, 1989). Only
where the governing statute did not authorize the school official's conduct in enforcing
or monitoring the home schools have courts found that the officials acted unlawfully.
See M~, supra at § 2(a).
Similar to the facts and the home schooling statutes involved in the present case,
a parent in Battles argued that Maryland's home schooling law violated both the RFRA and the Free Exercise
clause. 904 F.Supp. at 473. The Maryland Home School Act permitted the state to have
a supervisory role over children's education and also had curriculum requirements,
a maintenance-of-certain-documents requirement, and a requirement that the parent
allow a school representative to observe the parent's instruction three times a year.
904 F.Supp. at 472-73. To determine whether, under the RFRA, these provisions substantially
burdened the parent's exercise of religion, the court in Battles stated that a "substantial burden exists in the Constitutional sense when government
action compels a party to affirm a belief they do not hold, discriminates against
an individual or group because of religious beliefs, inhibits the dissemination of
particular religious views, or pressures a party to forego a religious practice."
Id. at 477. Battle argued that the curriculum requirement diminished the importance of Christian holidays
and generally promoted a "godless world view." Id. Applying the substantial burden definition, the Battles court, however, concluded that the monitoring requirements did not impose a substantial
burden on Battle because Battle did not have to alter her religious beliefs or forego acts necessary to her beliefs
to comply with these requirements. Id. According to the Battles court, Maryland was not required to "subsidize" the claimant's particular religious
beliefs by eliminating contrary viewpoints from the required curriculum. Id. Because the Battles court found no substantial burden, it rejected Battles' claim under the RFRA. Id. The Battles court also rejected Battle's First Amendment claim by applying the rule in Smith, reasoning that the Maryland education law at issue applied to all children in the
State and that Battle did not claim that the law was passed for the purpose of suppressing religion. Id. at 475.
Likewise, in Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987), on remand on other grounds to 678 F.Supp. 213 (S.D.Iowa 1988), the Eighth Circuit upheld reporting and teacher
certification requirements against allegations that the requirements violated two
fundamentalist Baptist church schools' exercise of their religion. Id. at 490-494. The Iowa statute required that, upon the local school district secretary's
request, the principal of any private school must annually furnish the names, ages,
and number of days of attendance of each pupil in grades one through eight, the text
used and the names of the teachers during the preceding year. Id. at 490. The Eighth Circuit reasoned that the burden on the principal's religious
beliefs--if a burden existed at all--was very minimal. Id. According to the court, the statutory reporting requirement did not infringe in any
way upon the content, approach, or structure of the principals' schools, given that
each year, a local school district sent each principal a form which could be completed
by a secretary under the principal's supervision in less than one day; the forms required
nothing more than the minimal information requested; and the principals admitted that
the information was readily available to them. Id.
Similarly, where a state statute required the supervisory officers of all private
schools to report the name, age, and residence of every child of compulsory school
age in attendance, the court in Attorney General v. Bailey, 436 N.E.2d 139 (Mass. 1982), cert. denied 459 U.S. 970 (1982) held that this statute did not affect the pastor's, the children's
or the parents' right to maintain their religious beliefs but regulated conduct. Id. at 146. Though the parents had sincerely held religious beliefs, the court determined
that, because of the importance of education to society, the state's need for the
required information outweighed the reporting statute's "incidental" burden on the
pastor's, children's and parents' rights to practice their religion. Id. The pastor and parents were free to teach their religious doctrines to the children
who attended the school and the children were free to learn those doctrines and the
pastor and associate pastor needed only to disclose the names and residences of the
children so that the state might determine whether all children were complying with
the state compulsory attendance law. Id.
Based on the above-mentioned cases and annotations, we believe that Claimant would
not be able to prove that the majority of the home schooling requirements, which are
less burdensome than those upheld in Battles, "substantially burden" her exercise of her religious beliefs since presumably they
do not infringe in any way upon the content, approach, or structure of her home school,
and since presumably she does not have to alter her religious beliefs or forego acts
necessary to her beliefs to comply with these requirements Therefore, the SCRFA would
not provide a defense or exemption from those requirements.
However, at least one court held that approval requirements do significantly burden
an individual's religious freedom. See e.g., Blount v. Department of Educational and Cultural Servs., 551 A.2d 1377 (Me. 1988)(prior approval by public authorities imposed a "significant
restraint" on a parents' exercise of a sincerely held religious belief); but see State v. Shaver, 294 N.W.2d 883, 897 (N.D. 1980) cited in New Life Baptist Church Academy, 885 F.2d at 951)(finding that burden imposed by prior approval statute is "minimal,"
"incidental," and would "not pose a very real threat of undermining the Bible Baptist
Church members' community and religious practices"); State v. Schmidt, 505 N.E.2d 627 (Ohio 1987) (holding that a statutory approval requirement for home
education programs did not infringe upon a person's religious freedom). Claimant might
be able to demonstrate that the approval process substantially burdened her religious
freedom. This fact, however, does not end the inquiry.
ii. SCRFA - Compelling State Interest
The SCRFA requires that if a substantial burden is found, the state must show that
applying that substantial burden to the person furthers a compelling state interest.
See § 1-32-40. One South Carolina advisory opinion, which pertained to whether a law
establishing standards for child day care facilities could be applied to day care
centers operated by churches, is instructive. See S. C. Op. Att'y Gen. 65, 1977 WL 24408 (March 1, 1977). That opinion recognized that
under Sherbert's compelling interest test, the "protection of minor children by the state has consistently
been held to constitute a 'compelling state interest' and that "state regulation designed
to protect minor children is not an unconstitutional interference with the free exercise
of religion even though the type of protection afforded runs contrary to the parent's
religious beliefs." 1977 S. C. Op. Att'y Gen. 65, 1977 WL 24408, at ** 3 (citing Sherbert, 374 U.S. 398 (1963) and Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1945)). Thus, South Carolina recognizes that it has a compelling state
interest in protecting children. Likewise, courts have also indicated that states
have several other compelling interests. For instance, courts have determined that
home-schooled children may be subject to standardized testing to assess the quality
of education the children are receiving. Swanson, 135 F.3d at 699 (citing Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir. 1988)); see also Murphy, 852 F.2d at 1041-42 (finding that the government has a compelling state interest
in educating all of its citizens and in ensuring that they are being adequately educated).
Further, courts have upheld reporting and teacher certification requirements for home
schoolers because states proved they had compelling interests for having such requirements.
See e.g., Fellowship Baptist Church, 815 F.2d at 490-91 (rejecting a claim that reporting and teacher certification requirements
were unconstitutional, reasoning that the state's interests in receiving reliable
information about where the children are being educated and by whom, in knowing whether
the children were attending school and receiving an education, and in assuring that
each child received a quality education, were compelling).
Likewise, approval requirements were also upheld because states showed they also had
a compelling state interest. See e.g., State v. Schmidt, 505 N.E.2d 627 (Ohio 1987) (holding that a statutory approval requirement for home
education programs reasonably furthered the state's interest in educating its citizens
and did not infringe upon free exercise of religion); New Life Baptist Church Academy v . East Longmeadow, 885 F.2d 940 (1st Cir. 1989)(rejecting a constitutional challenge to a requirement
that the town's school committee approve the education that a private Baptist school
provided because: (1) the record indicated that among the proposed procedures was
the gathering of written information about the school's pupils, texts, schedule, hours
and days taught, compliance with safety and health rules, and curricula; and (2) the
court noted that the academy, which did not object as such to supplying the requested
information to the committee, objected to the information procedures only as the procedures
were part of a "secular approval process"), cert. den. 494 U.S. 1066 (1990); Blount, 551 A.2d at 1381-82 (upholding state's prior approval requirement because the state
had compelling interests in the quality of education and in ensuring that all its
citizens are being adequately educated). Using these interests here, South Carolina
would be able to prove it too has one or more compelling state interests and thus
could overcome any burden on Claimant's religious beliefs. Once again, however, a
finding that South Carolina has compelling state interests does not end the inquiry.
iii. SCRFA - Least restrictive means
The SCRFA lastly requires the state to prove that applying the burden to the person
is the least restrictive means of furthering that compelling state interest. See § 1-32-40. We note that only a few cases actually discuss this final criterion. In
those cases, courts have held that the standards the school board uses to approve
a home school, for example, must be "reasonable." New Life Baptist Church Academy, 885 F.2d at 945 (citing State v. Whisner, 351 N.E.2d 750 (1976)(striking down as "unreasonable" regulations so pervasive and
all-encompassing that they "effectively eradicate" the school's private autonomy));
see also Lawrence, 412 S.E. at 395 (finding that South Carolina's validation process for the basic
skills examination was itself unreasonable, and that therefore the examination was
not properly validated and the requirement that the parents pass the examination was
therefore unenforceable). To determine whether standardized testing would be a less
restrictive means in furthering the state's interests than the state's preferred "information
gathering procedures," the New Life Baptist Church Academy court, guided by admonitions from the Supreme Court, considered: (1) the need to
balance compelling state interests against probable burdens upon religious freedom,
(2) the need to determine the extent to which accommodation of religious beliefs will
interfere with achieving the state's compelling interest, and (3) administrative considerations
which played an important role in determining whether the state can follow its preferred
means. 885 F.2d at 946-47. After considering these factors, the New Life Baptist Church Academy Church court found that the proposed standardized testing's voluntary nature, the difficult
administrative problems that it threatened to impose, its uncertain potential for
achieving the state's legitimate educational quality objectives, and the limited extent
to which it will alleviate the burden on the approval requirement itself, led it to
conclude the standardized testing alternative was not a less restrictive means for
First Amendment "free exercise" purposes. Id. That court further noted that it was only considering the proposed methods as outlined
by the state and not examining their actual implementation since the state had not
at that time started implementing the proposed methods. Id.
Likewise, the court in Blount employed a balancing test to determine what constitutes the least restrictive means.
551 S.2d at 1382. The Blount court indicated that "the state must prove that all less
restrictive means advanced by the [plaintiffs] would cause too much harm to the public
interest in educational quality to justify the increased benefit to the [the plaintiffs']
exercise of religion." Id. (citing Thomas v. Review Board, 450 U.S. 707, 718-19 (1981)). The Blount court further explained that the State does not have to prove the "impossible standard
that no adequate less restrictive alternative can be developed, only that none has
been proposed." Id. (emphasis in original). The parents in Blount offered a few alternatives which they believed were the least restrictive means,
namely giving their home "private school status" because private schools had fewer
requirements than home schools, and offering standardized testing. Id. at 1382-83. The Blount court rejected the first alternative, reasoning that the state may more closely monitor
home schools than private schools because, in private schools, teachers have taken
on the responsibility of educating children unrelated to them, parents have entrusted
their children to some other teacher, and students mainly spend the school day with
students unrelated to them. Id. at 1383. The Blount court also did not accept the second alternative because the parents made no showing
that Maine's home schooling rules were "unusually restrictive" especially where Maine's
approach to home schooling was flexible. Id. at 1384. The court further reasoned that the least restrictive means "need not be
the lowest common denominator" and that other states who wish to provide even further
restrictions than Maine could not "thereby unilaterally make federal constitutional
law." Id.
Like the New Life Baptist Church Academy court, the court in Blount also rejected the standardized testing alternative, stating that testing would not
adequately protect the state's interest in quality education because the state's being
interested only in test scores would turn instruction into exam coaching and would
not further the state's interest in quality education and because prior review allowed
the state to become involved sooner than would simply waiting until annual standardized
testing revealed inadequate instruction. Id. at 1384-85. Additionally, in Fellowship Baptist Church., 815 F.2d at 491, the Eighth Circuit held that the principals' proposed alternative
of parental reporting would not adequately serve the state's purpose where the reports
submitted by the individual parents or an elected representative would not provide
a means by which information could be verified; and where there was no guaranty that
all present or future parents would agree to such proceedings. Id. Based on these cases, it is clear that South Carolina would be able to establish
that it employed the least restrictive means to further its compelling state interests.
CONCLUSION
In summary, the SCRFA provides a claim or defense to persons whose exercise of religion
is substantially burdened by the State. S.C. CODE ANN. § 1-32-30 (Thomson/West 2005). This statute prohibits the state from substantially burdening an individual's
exercise of religion, even if the burden comes from a rule of general applicability,
unless the State shows that applying the burden to the person furthers a compelling
state interest and is the least restrictive means of furthering that compelling state
interest. See S.C. CODE ANN. § 1-32-40 (Thomson/West 2005). As shown above, other state and federal courts have held that the reporting
requirements states have imposed on private or home schools do not, for the most part,
"substantially burden" a person's exercise of religion. Therefore, we believe that
the SCRFA would not provide a defense to Claimant's noncompliance with South Carolina's
home-school-progress-reporting requirement and its parental-maintenance-of-certain-documents
requirement allegedly due to her purported sincerely held religious beliefs since
these requirements would only minimally burden the free exercise of her religious
beliefs. On the other hand, while a court held that an approval process for home schools
actually does substantially burden a parent's free exercise of conflicting religious
beliefs, the State could still show that applying the substantial burden to Claimant
furthers compelling state interests, such as interests in receiving reliable information
about where children are being educated and by whom, in assuring that each child receives
a quality education, and in knowing whether children are attending school and receiving
an education.
We note that the court may find that these interests may or may not be as compelling
where as here, the child is no longer subject to the state's compulsory education
law since she has exceeded the age requirement for compulsory public education. We
were unable to find any cases applying the same state interests to cases which involved
public education but which did not involve the compulsory education laws. However,
it could be argued that merely requiring that the Claimant's mother "maintain," rather
than report, certain documents and to only semi-annually report her child's progress
to school officials is the least restrictive means of furthering these compelling
state interests. See S.C. CODE ANN. § 1-32-40 (Thomson/West 2005). We believe that: (1) the statutory reporting requirement does not infringe
in any way upon the content, approach, or structure of Claimant's education, (2) that
the South Carolina home schooling laws require nothing more than minimal information
requested about Claimant's curriculum, attendance and school progress, (3) the information
if properly maintained by Claimant's mother should be readily available to her; and
(4) that the reporting and approval requirements are therefore reasonable standards
that a South Carolina court would uphold. Thus, in response to the question of whether
the SCRFA exempts Claimant's noncompliance with any of the applicable home schooling
laws, we conclude that it does not so exempt Claimant. Therefore, if Iona Academy
did not properly go through the approval process or Claimant and her mother did not
comply or continue to comply with the applicable home schooling statute, then Claimant
would not be entitled to child's insurance benefits as a full-time student during
the relevant period.
Sincerely,
Mary Ann S~
Regional Chief Counsel
Arthurice T. B~
Assistant Regional Counsel