PS 08005.051 Virgin Islands
A. PS 00-508 Home Schooling in the Virgin Islands
DATE: September 27, 1991
The Virgin Islands Code recognizes home schooling if the Commissioner of Education grants permission and approves the qualifications of the tutors and the course of study.
A home school that meets these criteria can be considered an educational institution for student benefits.
The child's parent should provide evidence that the Commissioner of Education has granted permission for the home school and that the Commissioner has approved the qualifications of the tutors and the proposed course of study.
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 as follows:
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 of students.
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).