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