February 1, 2016

Six Anti-Discrimination Victories Ring in the New Year

Peter Kamakawiwoole
HSLDA Staff Attorney


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In the fight for homeschool freedom, few things are more tedious and frustrating for our member families than doing battle against the bureaucracy of the Social Security Administration. Homeschool students may be eligible for benefits because their family’s primary bread-winner is retired, disabled, or has passed away, so the loss of Social Security income can present a real hardship to families. Because they are homeschooled, these students face an array of challenges not shared by their peers in “traditional” educational settings.

YOUR ATTORNEY Peter Kamakawiwoole Peter Kamakawiwoole

Over the last 10 years, HSLDA has assisted hundreds of homeschooling families attempting to navigate the Social Security quagmire. In the vast majority of cases, the underlying issue is a simple one: the local Social Security office simply misunderstands or misapplies the law (which is staunchly on the side of homeschoolers). Unfortunately, correcting these simple errors is often a war of attrition that lasts months, if not years.

Thankfully, six HSLDA member families received an early Christmas present this year, when their Social Security benefits were reinstated. Their stories highlight the complicated issues families face while dealing with Social Security, and underscore the need to vigilantly protect our hard-won victories.

Simple Misunderstandings, Massive Headaches

Homeschool students are eligible for benefits if they are enrolled for at least 20 hours per week in a program that complies with their state’s homeschool law. With the proper legal framework, the issue of eligibility is quite simple. The problem is that many local offices do not understand which state law applies, or what it requires.

One California homeschool student lost her benefits because Social Security did not think she had sufficient “proof” that she was a high school student. The member’s parents had maintained excellent records, and had provided those documents to Social Security, but when the local office received the documents generated by the student’s homeschool, they did not recognize them because they looked different from those generated by traditional private schools (homeschools are recognized as private schools in California). When HSLDA explained that homeschools are treated as private schools under state law and walked the local office through the paperwork that the family had submitted, the benefits were quickly reinstated.

Another student in Connecticut was flagged by Social Security because his submission was missing some paperwork that the local office thought was required. HSLDA clarified that in Connecticut, the state Department of Education has certain “suggested guidelines” for homeschooling, but all of them are optional if the local school district does not ask the family to satisfy them. When HSLDA pointed out that the family had already provided some of these optional documents voluntarily, and the rest were entirely optional, Social Security reversed its position.

Outdated Mechanisms Produce Outdated Results

The Social Security Administration is a federal agency, but the vast majority of its work is performed by local offices scattered across the 50 states. In order to provide uniform guidance to these offices, Social Security has created general policy manuals (or “POMS”) to help direct local offices towards the correct decision on a myriad of issues, including when a homeschool student is eligible for benefits.

In simple cases where the local office misunderstands state law, these POMS are quite useful. But like any other bureaucratic mechanism, the POMS do not maintain themselves, and can become outdated as state laws modernize. When Social Security bases its decision on a misstatement of law in an outdated POMS, rather than consulting the state law itself, needless complications arise.

An Ohio student found herself in this exact situation when her local office demanded that she prove her homeschool was “approved” by her local superintendent. As a technical matter, this demand was easy to disarm—Ohio law requires only that homeschoolers provide “notice” of their intent to homeschool, which the family had done. But because the local office’s insistence on “approval” could affect other families, HSLDA felt a more comprehensive response was appropriate. We discovered that the local office had relied on a POMS issued back in 1991, which in turn relied on a notorious Ohio Supreme Court decision in 1987. HSLDA informed the local office that Ohio had updated its law in the 25 years since the POMS was issued, replacing “approval” with “notice.”

A local office in Louisiana also questioned a homeschool student because his paperwork showed he was enrolled in a home-based private school, instead of a home study program. The right of homeschooling parents to establish a private school is clearly established as a matter of state law, but instead of looking at that statute, the local office had relied instead on a POMS issued in 2005, which did not discuss the private school option. HSLDA again walked the local office through the relevant state statutes, and demonstrated how the family’s paperwork proved the student was eligible for benefits, even though his documents differed from those outlined in the POMS (which discussed only the home study option).

After extensive review processes, both local offices concluded that HSLDA’s reading of the law was correct, and reinstated benefits for both students. By taking time to lay out the law in this fashion, we hope to spare other homeschooling families significant hardship in the future.

Asking Families to Perform the Impossible

Thankfully, the vast majority of states no longer condition the right of a parent to homeschool on gaining the official “approval” of government officials. The handful of states that still impose these requirements pose special challenges when families seek to have benefits reinstated.

In Massachusetts, two homeschool students found themselves in nearly identical situations, when their local school districts refused to issue formal “approval” letters to their homeschools. In both cases, the parents had complied with the state’s requirements to homeschool, and sought approval from the district. Both students were also 18—over the age of compulsory school attendance in Massachusetts. This meant the students had no legal obligation under state law to submit to the approval process at all, but did so voluntarily. It also meant the school districts were under no legal obligation to approve their homeschool programs—and in fact, both decided not to grant approval.

When Social Security asked these families to provide proof of approval, HSLDA intervened. Social Security’s general position is that a student above compulsory school attendance age must still comply with the law of his or her state in order to be entitled to benefits. We encouraged the local office to view that position in light of the larger legal landscape in Massachusetts, which has chosen not to compel students over the age of 16 to obtain approval to homeschool, making such approval entirely voluntarily. These two families had submitted, voluntarily, to the approval process, and had submitted everything they needed to obtain approval. These voluntary applications were, in turn, rejected by the school districts, which were also under no legal obligation to grant them to students above compulsory school attendance age.

In this unique set of circumstances, we urged the local office to recognize that while Social Security generally expects students above compulsory school attendance to comply with their state’s homeschool law, it does not expect students to perform the impossible—in this case, obtaining approval from a school district which refuses to expend time and resources to issue an approval letter it is not legally obligated to issue. All that is required is that the family does everything in its power to comply with the law, and both families had done exactly that.

Upon review, both local offices agreed that it would be unreasonable to demand that the families perform the impossible; proving that they had upheld their own legal obligations was sufficient.

Looking Forward

As I look back at the close of 2015, I am greatly encouraged by the victories homeschoolers have won in these cases. Although less flashy than civil lawsuits, these disputes have real meaning to our families, and battling these small instances of discrimination against homeschoolers has broader implications for the movement as a whole. Despite the great strides made for homeschool freedom over the past 30 years, these cases illustrate that there is still work to be done in educating others about homeschooling—especially in the trenches of civil bureaucracy, where so much law and policy is made every day.

These cases also represent a significant ministry opportunity for HSLDA. Normally, attorneys who handle Social Security appeals are eligible to collect up to 25% of the recovery in attorney fees. HSLDA attorneys represent member families at no cost, regardless of the amount in dispute or the final outcome. Homeschooling families have enough challenges without having to navigate the bureaucracy of the Social Security Administration on their own.

HSLDA’s assistance in these types of cases is made possible through the support of member families across the country, and generous friends of homeschooling who give to the Homeschool Freedom Fund. Would you consider partnering with us in defense of homeschool freedom? When you join HSLDA, give the gift of membership to someone you love, or make a tax-deductible donation to our litigation work through the Homeschool Freedom Fund, you make it possible for us to advance the cause of liberty in real, tangible ways, and to defend the rights of families just like you, who are trapped in the mire of federal bureaucracy.