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Decision No. 13,439

Appeal of VICTORIA DI ANA MURPHY, on behalf of her sons, GARLAN and LANDON FLETCHER, from action of the Board of Education of the Prattsburgh Central School District, regarding exclusion from school due to lack of immunization.

Decision No. 13,439

(June 29, 1995)

Henry M. Hille, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her children must be immunized pursuant to Public Health Law '2164 to continue attending school. The appeal must be sustained in part.

Petitioner enrolled her sons in respondent's school in August 1994 when she moved from Colorado to New York. In a letter to respondent dated October 1, 1994, petitioner stated that, due to her religious beliefs, her sons had not been and would not be immunized, but that she would agree to remove them from school immediately upon any outbreak of disease. In a letter dated October 13, 1994, respondent's school nurse sent a copy of petitioner's letter to the New York State Department of Health, Rochester Field Office (DOH), requesting advice on petitioner's immunization exemption request. In a letter dated November 22, 1994, the local DOH office opined that petitioner's letter did not sufficiently clarify the family's religious convictions to warrant an exemption.

By letter dated December 2, 1994, respondent notified petitioner that her request for an immunization exemption was denied. Petitioner advised respondent, in a letter dated December 16, 1994, that she would appeal respondent's determination to the Commissioner of Education. Respondent agreed to permit petitioner's sons to continue to attend school pending the outcome of the appeal. This appeal ensued.

Petitioner alleges that she believes immunizations are toxic, have the risk of dangerous side effects and violate her religious beliefs. She alleges that her beliefs are "with Jehovah's Witnesses" and immunizations per se are a violation of those religious beliefs. Respondent contends that petitioner has failed to provide sufficient information to justify a religious exemption. Respondent further alleges that petitioner has, for the first time in her petition, identified a religious organization to whose views she subscribes. Respondent also asserts that petitioner has provided no proof that she is a practicing Jehovah's Witness or that its tenets include a ban on immunization.

Public Health Law '2164(9) states that:

This section shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school.

As originally enacted, '2164(9) provided an exemption only for children whose parents or guardians were "bona fide members of a recognized religious organization whose teachings are contrary to the practices of inoculation." In 1990, however, '2164(9) was amended to its current form to allow an exemption for a child whose parent holds a "genuine and sincere religious belief" against inoculation (SeeSherr v. Northport-East Northport UFSD, 672 F.Supp. 81). Thus, the issue in this case is whether petitioner's opposition to immunization stems from sincerely held religious beliefs, not whether petitioner is a member of a recognized religious organization whose teachings oppose inoculation.

Whether a religious belief is "sincerely held" is a difficult factual determination which must be made, in the first instance, by local school district officials. In making this determination, school officials must make a good faith effort to assess the credibility of petitioner's statements and sincerity (Appeal of Swett, Decision No. 13392, dated April 6, 1995; Appeal of McGann, 32 id. 187). While school officials are not required to simply accept a statement of religious belief without some examination, they similarly should not simply reject a statement without further examination.

In this case, I find that respondent did not develop a record sufficient to conclude that petitioner was not entitled to the religious exemption of Public Health Law '2164(9). Respondent's answer in this appeal is perfunctory, containing only one page. It includes no exhibits and makes only the conclusory allegation, apparently based on a mistaken reliance on an antiquated legal standard, that petitioner is required to belong to a bona fide religious organization to qualify for an exemption. Moreover, the record indicates that respondent apparently relied on the opinion of a DOH regional representative in denying petitioner's request for an immunization exemption, rather than make its own substantive determination, as the law requires it to do.

Since respondent never met with petitioner to further assess the credibility or basis of her belief, I find the denial of the exemption premature. Moreover, the record is not sufficiently developed for me to determine whether or not petitioner qualifies for the exemption. I, therefore, remand this case to respondent to develop a more complete record from which it may ascertain the sincerity of petitioner's religious beliefs.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent meet with petitioner and with any witnesses the parties deem necessary to assess the sincerity of petitioner's religious beliefs regarding immunization. Until such assessment is completed by respondent, I order respondent to continue to permit petitioner's sons to attend school within the district.

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