Appeal of D.L., on behalf of her daughter J.Q., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding exclusion from school due to lack of immunization.

 

Felicia Pasculli, Esq., attorney for petitioner

 

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

 

(August 31, 2004)

 

 

MILLS, Commissioner.--Petitioner appeals the determination of the Bayport-Blue Point Union Free School District (�respondent�) that her daughter is not entitled to an exemption from the immunization requirements under Public Health Law (�PHL�) �2164.  The appeal must be dismissed.

In April 2003, J.Q. transferred to respondent�s high school from the Center Moriches Union Free School District.  In September 2003, respondent received J.Q.�s school records, which indicated that she had received all required immunizations from her birth in 1987 through 1994, but had not received her required Hepatitis B vaccination.  When respondent asked petitioner about this, she responded by submitting a letter dated September 24, 2003 requesting an exemption from the vaccination based on �religion and beliefs that nothing be placed into our body that doesn�t belong there.�

Respondent�s attorney and assistant superintendent met with petitioner on October 22, 2003 to interview her concerning the request for an exemption.  According to respondent, which petitioner does not deny, during this interview petitioner admitted that J.Q. had received all required immunizations between 1987 and 1994, and had also received a Mantoux test for tuberculosis in August 2002.  Petitioner explained that J.Q. had had a number of adverse reactions to various medications until the age of two and a half.  She also explained that she had become more deeply involved in her belief in God, and felt nothing should be placed in the body that could be damaging or that could offset the flow of blood.  She admits, however, that her daughter eats processed foods even though chemicals in foods may be damaging.

Respondent claims that petitioner also stated that immunizations are experimental and that she and her daughter are concerned with adverse reactions.  Petitioner stated that her daughter�s health was her primary concern, but she was not seeking a medical exemption from immunization because it is costly and difficult to obtain.

By letter dated November 6, 2003, respondent denied petitioner�s request.  The letter gave no reason for the denial but stated that respondent would review a request for a medical exemption if proper documentation was provided.  This appeal ensued.  Petitioner�s request for interim relief was denied on December 31, 2003.

Petitioner argues that it is her sincere and genuinely held religious belief that one must prohibit the introduction of any foreign substance into the bloodstream, including immunizations.  She maintains that this belief has developed through her practice of the Catholic faith and her study of religion over the past several years.  She asserts that many vaccines are derived from cells of aborted fetuses, and allowing her daughter to receive them would be an endorsement of pro-abortion ideals which are contrary to her religious beliefs.  Petitioner also claims that her application for a religious exemption for immunization was granted in 2000 by another school district in Suffolk County.

Respondent alleges that petitioner has failed to state a claim upon which relief can be granted.  It also contends that petitioner failed to verify her affidavit and that its determination was not arbitrary and capricious.  Respondent argues that the true basis of petitioner�s opposition to the vaccine is medical, not religious.  Respondent also avers that the vaccine for Hepatitis B is not produced with human blood or blood product.

I will first address respondent�s assertion concerning petitioner�s failure to verify her affidavit.  Affidavit is defined as �[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation� (Black�s Law Dictionary 58 [6^thed 1990]).  While it is true that an unsworn statement is not a valid affidavit, the �affidavit� in this case is annexed to the petition and preceeds the verification thereto.  In these circumstances, and in the absence of any prejudice to respondent, I will in my discretion, accept petitioner�s unsworn statement (see, Appeal of Ravix, 36 Ed Dept Rep 89, Decision No. 13,667).

     The issue in this appeal is whether petitioner�s opposition to immunization stems from sincerely held religious beliefs.  Whether a religious belief is sincerely held can be a difficult factual determination that must be made, in the first instance, by school district officials (Appeal of Quigley, 41 Ed Dept Rep 399, Decision No. 14,724; Appeal of Bork, 39 id. 549, Decision No. 14,307; Appeal of Murphy, 34 id. 648, Decision No. 13,439).  In making this determination, school officials must make a good faith effort to assess the credibility of petitioner�s statements and sincerity and may consider petitioner�s demeanor and forthrightness (Appeal of Quigley, supra).  While school officials are not required to simply accept a statement of religious belief without some explanation, they similarly should not simply reject a statement without further examination (Appeal of Murphy, supra).  The exemption from immunization does not extend to persons whose views are founded upon medical or purely moral considerations, scientific or secular theories, or philosophical and personal beliefs (Farina v. Bd. of Educ. of the City of New York, 116 F Supp 2d 503).  It is not necessary, however, for persons to be members of a recognized religious organization whose teachings oppose inoculation (Sherr v. Northport-East Northport Union Free School Dist., 672 F Supp 81).

     In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Garmaeva, 43 Ed Dept Rep ___, Decision No. 14,988; Appeal of Goldin, 43 id. ___, Decision No. 14,904).

Respondent�s administrators gave petitioner a full opportunity to explain her position at their meeting on October 22, 2003.  At that time, petitioner gave several reasons for her objection to immunization.  After affording petitioner an opportunity to explain her beliefs, and after assessing her credibility, respondent�s administrators found that petitioner failed to demonstrate that her opposition to immunization stems from sincerely held religious beliefs.  Respondent thus concluded that petitioner was more concerned with the effect of the Hepatitis B vaccine on her daughter�s physical health than on her spiritual well-being.  Based on the record before me, I cannot find that respondent�s determination was arbitrary or capricious.

 

THE APPEAL IS DISMISSED.

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