The Social Security Act provides for the payment of Child’s Insurance Benefits to
certain children of individuals who are entitled to old-age or disability benefits.
42 U.S.C. § 402(d)(1). A child can obtain student benefits if he is between 18 and
19 years old and is enrolled as a full-time student at a qualifying educational institution.
See POMS RS 00205.001.
To qualify as an educational institution for the purpose of awarding student benefits,
a school must provide a secondary education “as determined under the law of the State
or other jurisdiction in which it is located.” 42 U.S.C. § 402(d)(7)(C)(i); see also
POMS RS 00205.200A. Under the POMS, it is assumed that public schools in the United States are educational
institutions, absent evidence to the contrary. POMS RS 00205.250B.1.
An online school is “one that offers Internet-based courses to students.” POMS RS 00205.295A. Some features of online schools may include virtual classrooms; an interactive curriculum;
email, telephone, and fax access to teachers; online or in-person completion of tests;
required time spent online that the school monitors; and individualized instruction.
See id. An online school can qualify as an educational institution if it is consistent
with the law of the state in which it is located. POMS RS 00205.295B.
Michigan law allows for an alternative school known as a “dropout recovery program
operated by a district.” Mich. Comp. Laws § 388.1623a(1). The Step Up Program’s website
describes the school as a “dropout prevention program” but provides no information
indicating that it is operated by a district. See Back on Track Education, Student Policy
Sheet (last visited March 15, 2018). According to Ms. D~, a Step Up Program Administrator,
while the school partners with nine school districts, it is operated by a private
provider. Moreover, the Center for Educational Performance and Information, a state
agency responsible for reporting education data in Michigan, does not list the Step
Up Program as a Michigan school. See Center for Educational Performance and Information, Entity Quick Search (last visited March 15, 2018). Given the lack of evidence that the Step Up Program
is a public school or operated by a district, its status as an EI cannot be presumed.
POMS RS 00205.250B.
Although we do not consider the Step Up Program to be a public school, SSA may still
determine that it is an EI under Michigan law as long as it meets state law requirements.
Notably, “nonpublic schools” are mentioned in reference to Michigan’s compulsory attendance
law. Mich. Comp. Laws § 380.1561(3)(a) states:
(3) A child is not required to attend a public school in any of the following cases:
(a) The child is attending regularly and is being taught in a state approved nonpublic
school, which teaches subjects comparable to those taught in the public schools to
children of corresponding age and grade, as determined by the course of study for
the public schools of the district within which the nonpublic school is located.
A nonpublic school is defined in the Michigan Administrative Code as “a school not
operated by the public school district which . . . is providing instruction in the
elementary or secondary grades, or both, to pupils regularly enrolled in compliance
with compulsory education laws in this state.” Mich. Admin. Code R. 340.291(e) (pertaining
to auxiliary services). The statute defines a nonpublic school more generally as “a
private, denominational, or parochial school.” Mich. Comp. Laws § 380.5(4).
In Michigan, there is no procedure for state approval of nonpublic schools.[1] The Michigan Department of Education issues the Nonpublic School Membership Report,
an annual report based on a form which requests nonpublic schools to provide information
including the number of students in each grade, teacher qualification, and the course
of study offered. See Mich. Dept. of Ed., Nonpublic and Home School Information 2018-19
at 4 (see PDF link below) (last visited Oct. 25, 2018); Mich. Dept. of Ed., MDE NonPublic Membership
Report, (last visited Oct. 25, 2018); Mich. Dept. of Ed., 2018-19 Nonpublic School Membership
Report (see PDF link below), (last visited Oct. 25, 2018). This report, however, does
not list state approved nonpublic schools. Rather, it merely lists the nonpublic schools
that have completed the reporting process. See Nonpublic and Home School Information
2018-19, supra , at 5. The list is used by public school districts to determine nonpublic
school eligibility for federal programs. See id.; Mich. Dept. of Ed., Instructions
for Completing Nonpublic School Membership Report (see PDF link below), (last visited
Oct. 25, 2018).
See People v. Bennett, 501 N.W.2d 106, 118-19 (Mich. 1993); People v. DeJonge,449
N.W.2d 899, 902 (Mich. Ct. App. 1989). However, a “state approved nonpublic school”
is defined as a nonpublic school which complies with the Nonpublic School Act, Mich.
Comp. Laws §§ 388.551-388.558. See Mich. Comp. Laws § 380.6(10). Therefore, to be
valid, the Step Up Program must meet the requirements of the Nonpublic School Act.
Section 2 of the Nonpublic School Act defines a private, denominational or parochial
school as “any school other than a public school giving instruction to children below
the age of 16 years. . . .” Mich. Comp. Laws § 338.552. The Step Up Program is covered
by the Nonpublic School Act because it is a school “other than a public school.” Although
the statute indicates that a nonpublic school instructs children “below the age of
16 years,” Michigan courts have not limited the application the Nonpublic School Act
to schools that give instruction only to children under 16 years of age. See, e.g.,
Sheridan Road Baptist Church v. Dept. of Ed., 396 N.W.2d 373, 377 (Mich. 1986) (indicating
that provisions of Nonpublic School Act applied to “all schools in the state” and
applying the Act to two church schools which offered a kindergarten through grade
twelve program); Clonlara v. State Bd. of Ed., 501 N.W.2d 88, 98 (Mich. 1993) (finding
home schools covered by the Act).
Section 1 of the Act states: “It is the intent of this act that the sanitary conditions
of the schools subject to this act, the courses of study in those schools, and the
qualifications of the teachers in those schools shall be of the same standard as provided
by the general school laws of this state.” Mich. Comp. Laws § 338.551. With respect
to teacher qualifications, Section 3 of the Act specifies: “No person shall teach
or give instruction in any of the regular or elementary grade studies in any private,
denominational or parochial school within this state who does not hold a certificate
such as would qualify him or her to teach in like grades of the public schools of
the state. . . .” Mich. Comp. Laws § 338.553; see also Mich. Comp. Laws § 380.1233(1)
(all public school teachers must be certified). In other words, instruction in nonpublic
schools must be conducted by certified teachers, just as is required in public schools.[2]DeJonge held that the teacher certification requirement violated the Free Exercise
Clause of the First Amendment as applied to home schooling families whose religious
convictions prohibit the use of certified instructors. 501 N.W.2d at 144. The Michigan
Department of Education has extended this principle to nonpublic schools. See2018-19
Nonpublic School Membership Report , supra note 1. Here, however, the Step Up Program
is not exempt from the teacher certification requirement, as there is no indication
that it is a religious school or objects to the teacher certification requirement
based on a sincerely held religious belief.
See Clonlara, 501 N.W.2d at 98-99; People v. DeJonge, 501 N.W.2d 127, 129-30 (Mich.
1993).
The course requirements for public high schools in Michigan are described in Mich.
Comp. Laws §§ 380.1278a and 380.1278b. These requirements include: at least 4 credits
in English language arts; at least 3 credits in science; at least 4 credits in mathematics;
at least 3 credits in social science; at least 1 credit in health and physical education;
and at least 1 credit in visual arts, performing arts, or applied arts. Mich. Comp.
Laws §§ 380.1278a(1)(a), 380.1278b(1).[3] Mich. Comp. Laws §§ 380.1278a and 380.1278b were amended in June 2018 and December
2018, respectively, but the relevant subsections were not changed. In addition, according
to the Michigan Department of Education, the course of study for high school also
includes the Constitution of the United States, the Constitution of Michigan, and
the history and present form of civil government of the United States and the state
of Michigan and its political subdivisions and municipalities. See Nonpublic and Home
School Information 2018-19, supra note 1, at 5.
Here, the evidence sufficiently demonstrates that the Step Up Program provides a secondary
education in compliance with Michigan law and therefore is an EI. First, the evidence
shows that teachers in the Step Up Program are employed by the public school district,
pursuant to Mich. Comp. Laws § 380.1231. Prior to September 25, 2018, § 380.1231(3)
provided that a teacher hired by a school district must hold a valid teaching certificate.[4] Effective September 25, 2018, Mich. Comp. Laws § 380.1231(3) provides that a teacher
hired by a school district may be otherwise qualified to teach high school subjects
by meeting the requirements in § 380.1233b. Section 380.1233b(2), in turn, provides
generally that a non-certificated, non-endorsed teacher is qualified to teach a subject
if he or she has an undergraduate major or graduate degree, professional experience,
and/or a professional license or certification in the relevant field. Thus, the teacher
certification requirement is met. Second, the evidence shows that teachers at the
Step Up Program utilize a curriculum that meets the Michigan Merit Curriculum standards.
According to the Michigan Department of Education, the Michigan Merit Curriculum is
synonymous with the course requirements for public high schools in Michigan described
in Mich. Comp. Laws §§ 380.1278a and 380.1278b. See Mich. Dept of Ed., Michigan Merit Curriculum/Graduation
Requirements (last visited Jan. 8, 2019); Mich. Dept. of Ed., Michigan Merit Curriculum: High
School Graduation Requirements (see the PDF link below) (updated Sept. 2017). Based
on this information, the Step Up Program’s curriculum also appears to meet state law
requirements.