This legal precedent opinion confirms the continued validity of PS 06-341 as it applies to home schooling in California. If a student alleges home schooling in California, follow the instructions in GN 08005.006. 

On February 28, 2008, a California Court of Appeal in the Second District determined that parents could not legally home school their children. The Court explained that the California Education code required enrollment and attendance in a public, full-time day school, unless a child was enrolled in a private, full-time day school and actually attended that private school, the child was tutored by a person holding a valid state teaching credential for the grade being taught, or one of the few other statutory exemptions to compulsory attendance applied to the child. In Re Rachel L., 73 Cal. Rptr. 77 (2nd Dist. 2008).

On March 11, 2008, the Superintendent of Public Instruction of the California Department of Education issued a press release stating that "[p]arents still have the right to home school in our state" and that the Department's policy would not change in any way as a result of the Court's ruling. Subsequently, on March 25, 2008, the Court granted rehearing, meaning it will revisit its ruling. The Court also noted that the prior "opinion [is] not citable."

Given the California Department of Education's announcement, and the Court's decision to revisit its ruling, we believe that the POMS precedent opinion on student benefits based on private home schooling in California, see POMS PR 08005.006 (California), PR 06-341 OPINION: Whether Claimant Qualifies for Student Entitlement Based on Private Home Schooling in the State of California, is not changed by the recent developments. Our opinion addressed a situation in which a claimant was enrolled in full-time attendance at a home-based private school established by the claimant's mother, who had filed the requisite affidavit with the California Department of Education, stating, among other things, that she was the claimant's teacher and provided the instruction required by California public schools. The opinion recommended that the private school be recognized as an education institution for purposes of determining the claimant's eligibility for child's insurance benefits.

Accordingly, this POMS precedent opinion may still be consulted regarding private schooling in a home. If there are any subsequent court or legislative developments regarding this issue, we will notify you again.

A home-schooled student in California can qualify for benefits under Title II of the Social Security Act. The child must be taught by a person or persons capable of teaching, and the instruction must be provided in a private full-time day school. The instructor is not required to have a state teaching credential. The instructor must:

Maintain an attendance register for the child;

Provide instruction in the English language and in all the subjects required by California public schools; and

Every year file a Private School Affidavit (or another document that provides the same information) with the California Department of Education.

The local school district makes a determination about whether a home-schooled child is attending a private full-time day school and is, therefore, exempt from public school attendance.

The parent should submit evidence of compliance with California law.

QUESTION

You asked whether the claimant qualifies for student entitlement based on his attendance in a private school setting in his home in California.

SUMMARY OF EVIDENCE

The claimant, David W. L~, was born on January 21, 1989. His father, William R. L~ (the wage earner), died on December 16, 2000.

On August 16, 2006, the claimant's mother, C. L. L~, filed an application for child's insurance benefits on behalf of her son. According to the Student's Statement Regarding School Attendance (SSA-1372 BK), which is signed by the claimant and his mother, shows that the claimant is in full-time attendance at a private school setting called L~ Christian Academy in Riverside, California. The current school year runs from October 1, 2005, through September 30, 2006; the upcoming school year will run from October 1, 2006, through September 30, 2007.

The claimant expects to graduate from secondary or high school in September 2008. Id. School is in session 35 hours a week year-round, with no breaks. During the upcoming 2006-2007 school year, the claimant will turn eighteen on his next birthday on January 21, 2007. He will turn nineteen years old before his expected date of graduation in September 2008.

The claimant's mother also submitted the Private School Affidavit she filed for the 2005-06 School Year. In that Affidavit, she declared under penalty of perjury and the law of the State of California that she is the Principal/Teacher of the L~ Christian Academy, a private school; that two children are enrolled in elementary education and two in secondary education (the claimant is one of the students enrolled in secondary education); and that she maintains attendance records for each student and records of the courses of study, as required by California law. The 2006-07 Private School Affidavit must be submitted between October 1 and 15, 2006.

DISCUSSION

A. Social Security Program Requirements

In order to be eligible to receive child's insurance benefits, an individual who is 18 years of age but has not attained age 19 must be a "full-time elementary or secondary school student" at an educational institution. Social Security Act § 202(d)(1)(B), 42 U.S.C. § 402(d)(1)(B). 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 Commissioner of Social Security (in accordance with regulations prescribed by the Commissioner) in light of the standards and practices of the schools involved. . . ." Social Security Act § 202(d)(7)(A).

An educational institution is an elementary or secondary school "which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located." Social Security Act § 202(d)(7)(C)(i).

In 1996, the Commissioner of Social Security revised the "rule on full-time elementary or secondary school students to include students enrolled in home schooling … programs authorized by State or local law." 61 Fed. Reg. 38,361-01 (July 24, 1996) (to be codified at 20 C.F.R. 404.367(a)(1)). The regulation reads:

You may be eligible for child's benefits if you are a full-time elementary or secondary student. * * * (a) You attend 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: (1) You are instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which you reside; . . . .

20 C.F.R. § 404.367(a)(1).

The Program Operations Manual System (POMS) was changed to address home schooling. Specifically, student benefits are payable if the following criteria are met:

(1) the student meets the federal standards for full-time attendance (FTA);

(2) the law of the state in which the home school is located recognizes home schooling as an educational institution;

(3) the home school the student attends meets the requirements of the state law in which the home school is located; and

(4) the student meets all the other requirements for benefits.

POMS RS 00205.275.

B. California Requirements

California law states:

Each person between the ages of 6 and 18 years not exempted under the provisions of this chapter or Chapter 3 (commencing with Section 48400) is subject to compulsory full-time education.

Cal Educ. Code § 48200 (West 2006). A child may be exempt from compulsory public school attendance if he or she is taught by a person or persons "capable of teaching" and such instruction is provided in a private full-time day school. Cal. Educ. Code § 48222. A state teaching credential is not required. The private school must maintain an attendance register for each child, provide instruction in the English language and in all the branches of study required by California public schools, and annually file a Private School Affidavit (or other document that provides the required information) with the California Department of Education. Cal. Educ. Code §§ 33190, 48222. A determination of whether a home schooled child is attending a private full-time day school, and therefore exempt from public school attendance, is made by the local school district. Cal. Educ. Code § 48415; see also California Department of Education's website at www.cde.ca.gov (Private Schools Frequently Asked Questions).

Here, the claimant's mother established a home-based private school called the L~ Christian Academy. She filed the required Private School Affidavit for the current school year, which ends on September 30, 2006; her Affidavit for the upcoming 2006-07school year is not yet due. She is the claimant's teacher and has declared under penalty of perjury that she provides the requisite instruction required by California public schools. The private school that the claimant attends provides secondary education as determined by California law.

Accordingly, the private school should be recognized as an educational institution for purposes of determining the claimant's eligibility for child's insurance benefits.