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Decision No. 14,307

Appeal of SUSAN BORK, on behalf of her daughter, TAYLOR, from action of the Board of Education of the City School District of the City of North Tonawanda regarding exclusion from school due to the lack of immunization.

Decision No. 14,307

(February 15, 2000)

Norton, Radin, Hoover & Freedman, Esqs., attorneys for respondent, Bernard B. Freedman and Amy B. Freedman, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of North Tonawanda ("respondent") that her daughter is not entitled to an exemption from the immunization requirements under Public Health Law "2164. The appeal must be dismissed.

Petitioner and her husband are residents of the City School District of the City of North Tonawanda. In May 1999, petitioner contacted the district about enrolling her daughter, Taylor, in September 1999. She requested that her daughter be allowed to attend school without the immunizations required by Public Health Law "2164, on religious grounds pursuant to "2164(9).

On or about June 30, 1999, petitioner met with John Essler, respondent's director of athletics, physical education, and program services, and with an attorney representing the district. After listening to petitioner's arguments for a religious exemption, Mr. Essler denied an exemption by letter dated July 8, 1999. Thereafter, petitioner met with respondent on September 8, 1999. Although the parties differ somewhat on the manner in which this meeting was conducted, it is clear that during an extensive interview, numerous questions were asked of petitioner by board members about her religious, medical and scientific beliefs and practices. Following this meeting, respondent's superintendent advised petitioner, by letter dated September 9, that respondent had denied her request for an exemption. This letter was followed by a second letter on September 17, 1999, advising petitioner of her right to appeal respondent's determination to the Commissioner of Education pursuant to Education Law "310.

This appeal was commenced on October 13, 1999. Petitioner's request for interim relief was denied on October 26, 1999.

The appeal must be dismissed. Public Health Law "2164(9) states that a child may be exempt from immunization on religious grounds where the child's "parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required...." Whether a religious belief is sincerely held can be a difficult factual determination which must be made, in the first instance, by school district officials (Appeal of Swett, 34 Ed Dept Rep 492, Decision No. 13,392; Appeal of McGann, 32 id. 187, Decision No. 12,800).

In this case, school officials provided opportunities for petitioner to present her arguments for exemption first to a school administrator, then to the full board of education (cf., Appeal of Murphy, 34 Ed Dept Rep 648, Decision No. 13,439; Appeal of McGann, supra). Respondent concluded that petitioner's beliefs were not religious in nature, but appeared to be based primarily on the potential adverse medical consequences of immunization.

Upon the record before me, I cannot say that respondent's conclusion was arbitrary or capricious. Of the 26 attachments to the petition, only 7, at most, can be considered religious or spiritual in nature. However, among these are three form documents from organizations called the Church of Human Life Science, Natural Hygiene Inc., and the Innerspace University Church, in which petitioner has filled in blanks with her name and other relevant information. It appears that petitioner claims membership in all three. The bulk of the attachments to the petition are articles from various periodicals which question either the safety or effectiveness, or both, of immunizations. According to respondent superintendent, at her meeting with the board of education, petitioner indicated that a friend of her sister's had died as a result of immunization. As stated in Matter of Christine M., 157 Misc. 2d 4, at page 16:

...in order to be afforded an exemption from immunization a parent must not only demonstrate a religious belief contrary to inoculation but must also demonstrate that the espoused belief is genuinely and sincerely held and as such forms the basis for the objection to vaccination. In other words, even if the espoused belief accurately reflects a parent's ultimate conclusion about the advisability of an inoculation, the opposition to inoculation nonetheless must "stem from religious convictions and have not merely been framed in terms of religious belief so as to gain the legal remedy desired." (Matter of Sherr v. Northport-E. Northport Union Free School Dist., supra, 672 F Supp, at 94.)

Based on the record, I concur with respondent that petitioner has failed to demonstrate that her request stems from religious convictions, and not merely a desire to avoid the perceived negative effects of inoculation. I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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