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October 24, 2017

A lonely boy sat reading near a feeble fire.

SSA Threatens: Study Year-Round … or Lose Benefits

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Peter Kamakawiwoole, Esq. PETER KAMAKAWIWOOLE
Litigation attorney

Most states recognize the right to homeschool in statutes. Some states have won the right to homeschool through court decisions. But only one state—Oklahoma—has enshrined the right to homeschool in its state constitution.

So it might surprise you to hear that Home School Legal Defense Association was in Stillwater, Oklahoma last week, representing a homeschooling family before the Social Security Administration (SSA). It turns out that even in America’s heartland, in perhaps the safest of safe places for homeschooling, families still have need of legal assistance.

The legal issue in this case was a relatively simple one; if a parent retires, becomes disabled, or passes away, and that parent paid into Social Security, then his or her child is entitled to receive benefits until he or she turns 18 years old. Those benefits are supposed to continue past age 18 if the child is still a “full-time high school student.”

Homeschooled students are “full-time high school students” if they are being educated for at least 20 hours per week in accordance with their state’s homeschool law.

In the Know—or Not

Unfortunately, not all Social Security offices have a working knowledge of their state’s homeschool law. Or even their state’s public school law.

The trouble began when the local SSA office in Stillwater terminated the benefits of a homeschooled student who had just turned 18. Even though he was scheduled to receive at least 20 hours of instruction each week, SSA said he had to follow the Oklahoma School Code, which says schools (referring, of course, to public schools) must have a six-hour instructional day.

When HSLDA contacted SSA to clarify this confusion (there are no hours-of-daily-instruction requirements for Oklahoma homeschools), the local office dug in. Rather than restoring the benefits, they asked the Social Security Administration’s general counsel’s office to weigh in.

The general counsel issued a decision, concluding not only that the six-hour requirement in the School Code applied to homeschools, but also that there were “at least 12 weeks during which he would have less than 20 hours of instruction” during the school year. In other words, this homeschool program wasn’t “full-time.”

Everybody Takes Time Off

The problem with that argument: each of the “12 weeks” referenced by the general counsel were holiday weeks. Labor Day. Fall Break. Thanksgiving. Christmas and New Year’s. Spring Break. Easter. In fact, the local school district took more days off during those weeks than the homeschool program did.

So HSLDA flew me out to Stillwater, where we had a hearing before an administrative law judge to set the record straight. We explained to the judge that the Oklahoma Court of Appeals decided nearly a hundred years ago that nonpublic schools (which includes homeschools) aren’t required to follow the requirements for public schools. We pointed out that if the general counsel was right—if scheduled holidays meant students had less than “20 hours of weekly instruction”—then no student in that school district (or the state of Oklahoma, or the country as a whole) could ever be a “full-time student.”

That general counsel’s decision has repercussions for every public, private, and homeschooled student in the country. It can’t possibly be what Congress meant to say in the Social Security Act. We expect the judge to rule on our appeal in the next few months.

None of this would be possible without the support of HSLDA’s member families, and our friends who have contributed to our litigation work through the Homeschool Freedom Fund.

If you’ve joined HSLDA or given to the Freedom Fund, I want to extend a special thank you to you on behalf of the more than 30 families that HSLDA is currently assisting in SSA proceedings. Many of these families are experiencing difficult times: a parent has passed away, or has suffered a disabling injury, or a household income has vanished. By supporting HSLDA, you make it possible for us to assist these families at no cost to them, and to fight all challenges to homeschool freedom, even in the “safest” of places.