In your memorandum dated August 14, 1991, you asked for our opinion as to: 1) whether
a home schooling situation in the Virgin Islands 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 Virgin Islands and 2) what requirements must be
followed in home schooling situations in the Virgin Islands. We have reviewed the
relevant statutory and regulatory provisions regarding home schooling in the Virgin
Islands and have reached the following conclusions:
1. Status as an Elementary or Secondary School Under the Social Security Act
For the purposes of entitlement to child's insurance benefits under the Social Security
Act ("the Act"), "[a]n I '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." Section 202(d) (7)(C)(i); accord
20 C.F.R. §404.367(a). The Virgin Islands Code specifically provides for home instruction
Children may be taught at home under rules and regulations prescribed by the Board
of Education when written permission has been granted by the Commissioner of Education
for such children to remain out of school for this purpose, but such children may
be examined by the Commissioner of Education or his authorized representative.
V.I. Code Ann. tit. 17 §84.
The relevant regulation, in turn, provides that:
Pupils may be released from school attendance to be taught at home by permission of
the Commissioner of Education who must approve the qualifications of tutors and the
proposed courses of study and who may require that such pupils be examined by a representative
of the Department of Education.
V.I. R. & Regs. tit. 17 §84-1.
Thus, an "elementary or secondary school" for purposes of the Act would include a
home schooling situation in the Virgin Islands if the commissioner of Education has
given his permission and approved the qualifications of the tutors as well as the
course of study. The Commissioner or his representative may also conduct examinations
Significantly, the materials which you have submitted to us regarding the specific
case in question do not indicate whether permission for home instruction has been
granted or whether the qualifications of tutors and proposed course of study have
been approved. Thus, we cannot state with any certainty whether the particular home
schooling situation in the present case would qualify as "elementary or secondary
school" under the Act.
2. Attendance Requirements Under the Act
Under the Act, "[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 the light of the standards and practices of the schools involved." Section 202(d)(7)(A).
Thus, the Act does not identify specific attendance requirements, but rather incorporates
by reference, the regulations implementing this particular section of the Act. Therefore,
whether a home schooling situation in the Virgin islands satisfies the attendance
requirements of the Act, is necessarily contingent on whether or not the home school
arrangement comports with SSA's regulations.
The regulations provide that an individual is a full time student if he or she is
"in full-time attendance in a day or evening noncorrespondence course and [is] 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." 20 C.F.R.
§404.367(b) (emphasis added).1/
Under the Virgin Islands Code, "[t]he required attendance in regular classes in public
schools shall not exceed six hours per school day." V.I. Code Ann. tit. 17 §83. The
Code also provides that "[t]he school year shall begin the first Tuesday after the
first Monday in September and end the last Friday in June." V.I. Code Ann. tit. 17
§61. However, there is no indication in either the statute or the regulation pertaining
to home schooling that there is any requirement as to the amount of time per week
which must be devoted to home schooling or the minimal duration of such a course of
study. As such, it does not appear that participation in a home schooling program
recognized under Virgin Islands law would necessarily qualify an individual as a full
time elementary or secondary school student under 20 C.F.R. §404.367(b).2/
1/ It also merits noting that, although the case discussed in the materials which
you sent to us is described as a home schooling situation, the actual education records
appear to indicate that the individual is participating in a program of correspondence
courses, rather than a home schooling program. The Secretary's regulation ordinarily
excludes participation in correspondence courses from the definition of full time
student. See, e.g., Thierren v. Schweiker, 795 F. 2d 2, 3-4 (2d Cir. 1986); Miller v. Richardson, 320 F. Supp. 313 (S.D.W.Va. 1970) (construing 20 C.F.R. §404.367(b)).
2/ In this case, plaintiff has indicated to SSA that his program of study is twenty
hours per week, for twelve months (9/89-9/90).