Appeal of S.M. and A.N., on behalf of their daughter S.N., 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.

Decision No. 15,217

(April 26, 2005)

Patricia A. Finn, Esq., attorney for petitioners

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

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

By letter dated February 17, 2004, petitioners requested that their daughter be permitted to attend respondent's schools without the immunizations required by PHL �2164 because "vaccination is contrary to our religious beliefs." The letter did not describe their beliefs. By letter dated March 6, 2004, petitioners provided additional information in support of their request for a religious exemption citing case law and legal authority, but again did not explain how their specific religious beliefs are contrary to the immunization requirements.

On March 26, 2004, the assistant superintendent for curriculum, instruction and general administration and respondent's attorney met with petitioners to ascertain the basis for their request. After hearing petitioners' arguments for a religious exemption and reviewing the information provided by petitioners in support of their request, respondent denied an exemption by letter dated July 14, 2004. Petitioners' request for interim relief was denied on September 3, 2004.

Petitioners contend that their objections to immunizations are based on sincerely held religious beliefs and seek an order reversing respondent's decision to exclude their daughter from school. They further seek attorneys' fees and costs.

Respondent maintains that petitioners' objections to immunizations are not based on sincerely held religious beliefs and that its determination should be upheld. Respondent further submits that the Commissioner lacks jurisdiction to award attorneys' fees and costs.

PHL �2164(9) provides:

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.

The issue in this appeal is whether petitioners' opposition to immunization stems from sincerely held religious beliefs. 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 Ed. of the City of New York, 116 F Supp 2d 503). However, it is not necessary 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). 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 D.L., 44 Ed Dept Rep 104, Decision No. 15,111; Appeal of D.K., 44 id. 47, Decision No. 15,094; Appeal of Quigley, 41 id. 399, Decision No. 14,724). In making this determination, school officials must make a good faith effort to assess the credibility of petitioners' statements and sincerity and may consider petitioners' demeanor and forthrightness (Appeal of D.K., supra; 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 D.K., supra).

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR �275.10; Appeal of Garmaeva, 43 Ed Dept Rep 253, Decision No. 14,988; Appeal of Goldin, 43 id. 20, Decision No. 14,904). In this appeal, the assistant superintendent and respondent 's attorney gave petitioners an opportunity to explain their position. The parties disagree over what transpired at the meeting. Petitioners claim that they provided a clear explanation of their religious beliefs that are contrary to the immunization requirements. Respondent contends that petitioners did not clearly state their religious beliefs that are contrary to immunization. Respondent further asserts that petitioners stated that they thought immunizations were harmful to an individual's health. According to respondent, the only references to religious passages made in support of an exemption, were made by petitioners' attorney in a letter received subsequent to the meeting. Respondent contends that petitioners' opposition to immunization is based upon their medical, personal or philosophical beliefs. Petitioners failed to submit a reply to respondent's answer.

After affording petitioners an opportunity to explain their beliefs, and after assessing their credibility, respondent determined that they failed to articulate the religious basis or origins of their beliefs. Based on the record before me, I cannot find that petitioners have demonstrated that respondent's determination was arbitrary or capricious.

In light of this disposition, I need not address petitioners' remaining contentions.

THE APPEAL IS DISMISSED.

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