TN 17 (12-17)

A. PS 18-020 Michigan Home School Opinion and is Home Schooling in Michigan an Educational Institution

Date: November 21, 2017

1. Syllabus

Home schools in Michigan are not educational institutions for students older than age eighteen, because they are not recognized as schools apart from the compulsory attendance ages, and because there are no regulatory requirements that apply to students after age eighteen.

THIS OPINION SUPERCEDES OPINION B. PS 03-043.

2. Opinion

QUESTION PRESENTED

You asked for an updated opinion on home schooling under the laws of the State of Michigan, with regard to child’s insurance benefits for students age eighteen or older. In order to answer this question, we first considered whether home schooling is an educational institution under Michigan law.

For the reasons discussed below, we conclude that home schooling in Michigan is not an educational institution for students age eighteen or older, because home schools are not recognized as a school as to this age group and there are no home schooling requirements or regulations in state law as to this age group.

BACKGROUND

The POMS section for home schooling in Michigan was last updated on January 31, 2001. E.g., POMS PR 08005.025. Given concerns about statutory changes to home schooling in Michigan, we were asked to provide an updated legal opinion.

DISCUSSION

To qualify for student benefits, a claimant must be at least 18 years old, but under age 19, unmarried, and a full-time elementary or secondary school student at a qualifying educational institution. See 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350(a)(5), 404.367. SSA may deem a student not to have attained age 19 under certain conditions, even though they have actually attained age 19. POMS RS 00205.325(B), (C).

In order to qualify as an educational institution for the purposes of awarding student benefits, a school must provide an “elementary or 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 00205.200(A)(defining elementary or secondary education as grade 12 or below). Public schools in the United States are assumed to be educational institutions, absent evidence to the contrary, while non-public schools are not assumed to be educational institutions. POMS RS 00205.250(B). In order to be eligible for student benefits as a home school student, an individual must be “instructed in elementary or secondary education at home in accordance with a home school law of the State” in which the individual resides. 20 C.F.R. § 404.367. POMS specifies that a home school student can receive benefits if “the law of the State in which the home school is located recognizes home school as an educational institution” and “[t]he home school the student attends meets the requirements of the State law where he or she resides.” POMS RS 00205.275(B).

A claimant must also be a full-time elementary or secondary school student in order to qualify for student benefits. The Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance at an elementary or secondary school. Section 202(d)(7)(a) of the Act; see also 20 C.F.R. § 404.367. To satisfy the “full-time attendance” requirement, a home school student must meet federal standards. POMS RS 00205.275(B). To meet the federal standards, the claimant must be enrolled in a non-correspondence course of at least 13 weeks’ duration and be scheduled for attendance at the rate of at least 20 hours per week (with certain exceptions). 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300(C).

Turning to Michigan law regarding home schools, Michigan requires compulsory public school attendance of all children from the age of 6 to the child’s eighteenth birthday, provided that the child turned age 11 on or after December 1, 2009, or was age 11 before that date and entered grade 6 in 2009 or later. Mich. Comp. Laws § 380.1561(1). For a child who turned age 11 before December 1, 2009 or who entered grade 6 before 2009, the child must be sent to school from the age of 6 until the child’s sixteenth birthday. Id. All prospective claimants for child’s insurance benefits as students are at least age eighteen, and thus are not subject to Michigan’s compulsory attendance law.

Michigan recognizes home schools, but only within the context of compulsory attendance. Home schools are an exception to compulsory public school attendance. A homeschooled child is exempt from compulsory attendance in two circumstances. Mich. Comp. Laws § 380.1561(3), (4). First, if “[t]he child is being educated at the child’s home by his or her parent or legal guardian in an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing, and English grammar.” Mich. Comp. Laws § 380.1561(3)(f). Second, “if 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.” Mich. Comp. Laws § 380.1561(3)(a). This statute uses the words “child” and “children,” which further demonstrates its application solely to those who have not yet reached age eighteen.

Michigan statutes do not state that home schools exist following a child’s eighteenth birthday and do not discuss home schools in a way that suggest they are recognized and regulated after a child’s eighteenth birthday. Michigan statutes do not mention any legal requirements or standards for home schools in any context other than in the compulsory attendance statute. Mich. Comp. Laws § 380.1561. To the extent home schools are mentioned elsewhere in Michigan statutes, it is to grant home school children access to services available to public school students. For example, home school children, including those at nonpublic schools, may participate in merit examination testing or in course offerings of the Michigan virtual high school. Mich. Comp. Laws §§ 380.1279g(11), 380.1481(5) (emphasis added); Mich. Atty Gen. Op. 7107 (2002). When the statutes refer to students who are age eighteen or older, they do so in reference to public schools or school districts, or in reference to providing a postsecondary education. E.g., Mich. Comp. Laws §§ 380.552(21) ; 380.1136; 380.1139(6); 380.1278b(5), (9); 380.1311(5), (6); 388.1606(4), (4)(l); 388.1621f(1), (8); 388.1707 . Michigan does not recognize or regulate home schools with students who are age eighteen or older.

Because home schools also may qualify as “nonpublic schools,” the regulatory requirements and definition of “nonpublic schools” are also relevant to assessing the status of home schools under Michigan law. Notably, “nonpublic schools” are mentioned in reference to the compulsory attendance law and several definitions of nonpublic schools explicitly link the term to the compulsory attendance law. Mich. Comp. Laws § 380.1561(3)(a). In the Michigan Administrative Code, Rule 340.291 defines a “nonpublic school” 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.” Accessed at http://dmbinternet.state.mi.us/DMB/ORRDocs/AdminCode/557_10529_AdminCode.pdf (last visited Nov. 16, 2017) (this rule pertains to providing auxiliary services, with emphasis added). In the Revised School Code, nonpublic schools are defined more generally as a “private, denominational, or parochial school.” Mich. Comp. Laws § 380.5(4). This section of the statute does not define “private, denominational, or parochial school.” However, the statute supervising private, denominational and parochial schools (Act 302 of 1921) defines “private, denominational or parochial schools” as “any school other than a public school giving instruction to children below the age of 16 years, in the first 8 grades as provided for the public schools of the state.” Mich. Comp. Laws § 388.552 (emphasis added). Thus, when Michigan requires private, denominational, and parochial schools to satisfy the same sanitary conditions, courses of study and teacher qualifications as public schools, by definition, private, denominational and parochial schools are only regulated where they give instruction up to age 16. Mich. Comp. Laws §§ 388.551(1), 388.552; Clonlara, Inc. v. State Bd. of Educ., 442 Mich. 230, 249-50 (1993). Thus, whether home schools are mentioned separately, or are considered under the umbrella of “nonpublic” or “private, denominational or parochial” schools, Michigan recognizes home schools only within the context of compulsory attendance, which applies only to children below the age of eighteen.

We are also persuaded by the regulatory history of 20 C.F.R. § 404.367. In 1996, the Agency expanded student benefits to children enrolled in home schooling or independent study programs authorized by State (or other jurisdiction) laws. 61 Fed. Reg. 38361-01, 38362, 1996 WL 409869 (July 24, 1996). “Many States or other jurisdictions have laws recognizing home schooling. Home schooling is an educational program in which the student is generally taught within the home by a parent/teacher.” 61 Fed. Reg. 38361. The regulation assumes that “The state or other jurisdiction specifies the requirements that must be met and the procedures that must be followed in these situations.” 61 Fed. Reg. 38361, 38362. Further, “[t]he child’s home schooling teacher must submit evidence that legal requirements for home schooling are met.” Id. Such requirements can include a certificate of intent, documentation of state-mandated tests, a list of courses being taught, and a copy of the attendance log or chart. Id. In Michigan, home schools do not have any requirements that must be met after age eighteen, including those mentioned in the Federal Register. Accordingly, Michigan does not recognize home schooling after age eighteen as providing an elementary or secondary education at home in accordance with a home school law of the State.” See 20 C.F.R. § 404.367.

Thus, we conclude that Michigan law does not recognize home schools apart from the compulsory attendance context. As a result, Michigan law does not recognize home schools as an educational institution providing elementary or secondary education after age 18. See POMS RS 00205.200. Home schools do not provide an education “as determined under the law of the State or other jurisdiction in which it is located” with respect to children who are 18 years old or older. 42 U.S.C. § 402(d)(7)(C)(i).

We note that this opinion conflicts with previous Legal Precedential Opinions at POMS PR 08005.025 and PS 08005.025. These older Legal Precedential Opinions regarding home schooling in Michigan were issued under now-obsolete statutes. For example, Michigan changed the compulsory attendance age, effective in 2010. Am. 2009, Act 204. Thus, we believe that POMS PR 08005.026 and PS 08005.026 should no longer be followed and should be removed from the precedential file.

CONCLUSION

Based on the foregoing, for students older than age eighteen, we conclude that home schools in Michigan are not educational institutions, because they are not recognized as schools apart from the compulsory attendance ages and because there are no regulatory requirements that apply to them after age eighteen.

Kathryn Caldwell

Regional Chief Counsel

Region V, Chicago

By: Ryan Shafer

Assistant Regional Counsel

B. PS 03-043 Qualifications for home schools under the laws of the six states in Region V

THIS OPINION IS OBSOLETE. See A. PS 18-020.

Date: January 31, 2001

1. Syllabus

Michigan law recognizes home schooling under its Private Denominational and Parochial Schools Act. To comply with this Act, a nonpublic school teacher must obtain:

• A Michigan teaching certificate;

• A substitute, full year or emergency teaching certificate; or

• A bachelor's degree.

The State of Michigan waives the education requirements for teachers if a nonpublic school claims to object to the certification requirement on the grounds of religious beliefs; however, it may require teacher certification for home instruction not based on religious convictions.

A nonpublic school must provide a basic curriculum that includes courses in reading, mathematics and writing.

In every case, ask the home school instructor to submit evidence that the Michigan laws are being met.

2. Opinion

In Michigan, every parent, guardian or person having control and charge of a child from the age of six to the child's sixteenth birthday must send the child to a public school for the entirety of the school year. Mich. Stat. § 380.1561(1). A child is exempt from the compulsory attendance law if the child is regularly attending and being taught in a state-approved, nonpublic school which teaches subjects comparable to those taught to children of corresponding age and grade level in the public schools of the district in which the nonpublic school is located. Mich. Stat. § 380.1561(3)(a). The Michigan Department of Education (MDOE) has interpreted "comparable" curricula as instruction in mathematics, reading, English, science, social studies at all grade levels, and the Constitutions of the United States and Michigan, the history and present form of civil government of the nation and the state, and the political subdivisions and municipalities of the state in high school. www.Michigan.gov/mde - About MDE - Programs & Offices - Government Services & Customer Satisfaction - Home Schools Information - Attachment B1, Exemption (f) Home Schools. A child is also exempt from the compulsory attendance law if the child is taught at home by a parent or legal guardian in an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing and English grammar. Mich. Stat. § 380.1561(3)(f). A child being educated at home may be exempted from compulsory attendance under either subsection (a) or subsection (f) of the state's compulsory education law. Mich. Stat. § 380.1561(4).

Under subsection (3)(a), a home school may be considered a nonpublic school if it is in compliance with the Private, Denominational and Parochial Schools Act. Mich. Stat. § 388.551 et seq. In order to be in compliance with the Act, qualifying nonpublic school teachers must (1) obtain a Michigan teaching certificate (Mich. Stat. § 388.553), (2) obtain a substitute, full-year or emergency teaching permit, or (3) obtain a bachelor's degree. When a nonpublic school claims to object to the certification requirement on the grounds of sincerely held religious beliefs, however, the minimum education requirements for teachers are waived. People v. DeJonge, 442 Mich. 266, 268, 501 N.W.2d 127, 129 (1993). The state of Michigan, however, may still require teacher certification for home instruction pursuant to subsection (3)(a), which is not based on religious convictions. 442 Mich. 316, 327-28, 501 N.W.2d 106, 111-12 (1993); Mich. Stat. § 388.553. Additionally, although nonpublic schools must provide a basic curriculum, including courses in reading, mathematics and writing, the instruction is not required to be identical to that of a public school. Snyder v. Charlotte Public School Dist., 421 Mich. 517, 540, 365 N.W.2d 151, 162 (1984). In Clonlara, Inc. v. State Board of Education, 442 Mich. 230, 242, 501 N.W.2d 88, 94 (1993), the Michigan Supreme Court found that the Nonpublic School Act did not require such a school to be in session for the 180 days required of public schools, as required by Mich. Adm. Code § R 340.10(4).

If a child is exempted from the compulsory education law under the home school provision, subsection (3)(f), the following conditions apply as listed on the MDOE website: (1) the home school is not a nonpublic school; (2) the Michigan Department of Education has no role with the home school family; (3) the home school does not report to the Department of Education; (4) the intermediate and local school district is responsible for interpreting and enforcing the compulsory attendance law; (5) there are no minimum qualifications for teachers except that they must be the parents or legal guardians of the children; (6) the home school family must provide an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing and English grammar. www.mde.state.mi.us - Parents, Home Schools, "Information on Nonpublic and Home Schools", Attachment B1.

CONCLUSION

These are the current requirements for home schooling in each of the six states in our region.