Homeschooling families in all 50 states should be eligible for the new Federal Scholarship Tax Credit (FSTC). That's my conclusion after reviewing the IRS's recently proposed regulations—and after more than two decades of successfully making similar arguments on behalf of homeschooling families in federal courts and before federal agencies.

The key is a familiar principle: When federal law defines a school by reference to state law, homeschooling should qualify even if the federal statute never expressly mentions it.

On October 1, the IRS released a notice of proposed rulemaking implementing the FSTC, which uses a generous federal tax credit to encourage private philanthropy, benefiting students in both public and private education. Unlike state voucher and education savings account programs, the FSTC relies on private donations to nonprofit Scholarship Granting Organizations (SGOs), rather than government-collected funds.

But an important question remains: Will homeschool and microschool students qualify?

The uncertainty stems from Congress defining eligible education expenses by referring to a provision of the Internal Revenue Code originally enacted in 1997 for Coverdell Education Savings Accounts. Section 530(b)(3)(A) speaks of expenses connected to enrollment or attendance at a public, private, or religious school. It doesn't expressly mention homeschooling.

The IRS acknowledged receiving numerous requests for clarification and promised further guidance. But its proposed regulations also reaffirm something important. Under Section 530(b)(3)(B), a school is defined as one providing elementary or secondary education, “as determined under State law.”

Those last five words are critical.

We've encountered nearly identical language before, and the results offer good reason to believe homeschooled students will qualify.

1. Veterans benefits: A case I argued more than 20 years ago

More than 20 years ago, I argued before the United States Court of Appeals for Veterans Claims that a homeschooled student should qualify for benefits under federal law.

In Theiss v. Principi, the Department of Veterans Affairs had denied benefits to a veteran whose son was homeschooled, claiming the family's homeschool program was not an “educational institution.”

I argued that homeschooling could satisfy that definition. The court agreed that the law did not categorically exclude homeschooling, citing a legal dictionary's definition of an educational institution as a place of teaching that could encompass a homeschool program.

That decision helped lay the foundation for HSLDA to secure benefits for dozens of military families who chose to homeschool their children.

2. Social Security: Hundreds of successful cases in all 50 states

The same principle has guided HSLDA's work securing Social Security student benefits for homeschoolers.

For more than two decades, our attorneys have successfully represented hundreds of homeschooling families seeking these benefits.

The Social Security Act defines an elementary or secondary school as one providing education “as determined under the law of the State or other jurisdiction in which it is located.” Sound familiar?

That language closely resembles the definition incorporated into the FSTC. And, once again, it says nothing expressly about homeschooling.

Nevertheless, homeschool students qualify. The Social Security Administration maintains an extensive Program Operations Manual System addressing state homeschool laws. Agency personnel can consult those materials to determine whether a student satisfies the applicable state requirements.

The IRS already has a roadmap

For more than two decades, HSLDA has successfully argued that homeschool students qualify for federal benefits under statutes that never expressly mention homeschooling. One argument prevailed in federal court. The Social Security Administration has accepted and implemented the other in all 50 states. Although those cases involved students completing high school after turning 18, the underlying principle applies more broadly: Federal education laws should not be interpreted to exclude homeschooling merely because Congress did not expressly mention it.

The FSTC incorporates substantially similar statutory language, directing us to look to state law to determine what qualifies as a school. And homeschooling is lawful in every state.

I am not alone in reaching this conclusion.

Of course, families must still meet the program's income requirements, live in a state that has opted into the FSTC, and satisfy a participating SGO’s requirements. The IRS has also promised additional guidance about qualifying schools and expenses.

But the central legal question should not be difficult. The IRS doesn't need to reinvent the wheel. It only needs to follow the path already traveled by federal courts and agencies.

You can make your voice heard

The IRS is accepting public comments on its proposed regulations through December 1, 2026, and anyone can submit a comment.

To participate, visit the IRS public comment page and follow the instructions. Comments become part of the public record, so be mindful of including personal information.

At HSLDA, we look forward to working alongside our allies in the education community and SGOs to ensure that eligible homeschool and microschool students can benefit from this new opportunity.

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