Appeal of L.K., on behalf of H.K., from action of the Board of Education of the Ramapo Central School District regarding exclusion from school due to lack of immunization.

Decision No. 15,243

(July 15, 2005)

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ramapo Central School District ("respondent") that her son, H.K., is not entitled to an exemption from the immunization requirements under Public Health Law ("PHL") �2164. The appeal must be sustained.

In February 2004, petitioner registered H.K. for kindergarten at respondent's Cherry Lane Elementary School and requested an exemption from the immunization requirements under PHL �2164(9). Section 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.

On March 23, 2004, petitioner met with the district's assistant superintendent of schools and the district's attorney regarding her religious exemption request for H.K.

By letter dated August 18, 2004, respondent's superintendent denied petitioner's request for an exemption. The letter stated, in pertinent part, that petitioner "failed to articulate the religious basis or origin of [her] beliefs. It is not sufficient to merely state, in substance, that God provides each person with an immune system."

On September 14, 2004, petitioner sent a letter to the superintendent in which she elaborated on her religious beliefs regarding immunizations. She subsequently appealed the superintendent's determination to respondent.

By letter dated November 15, 2004, petitioner was advised of respondent's decision to uphold the superintendent's determination. This appeal ensued. In response to petitioner's request for interim relief, respondent permitted H.K. to attend school pending the outcome of this appeal.

Petitioner contends that her objections to immunizations are based on genuine and sincerely held religious beliefs and seeks a determination that H.K. is entitled to a religious exemption from the immunization requirements under PHL �2164(9).

Respondent maintains that the appeal is untimely. Respondent further asserts that petitioner's objections to immunizations are not based on genuine and sincerely held religious beliefs and that petitioner failed to meet her burden of proof.

Respondent contends that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).Petitioner commenced her appeal on December 6, 2004, within 30 days of respondent's November 15, 2004 determination upholding the superintendent's decision. Therefore, the appeal is timely.

The issue in this appeal is whether petitioner's opposition to immunization stems from genuine and 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 Educ. 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). The courts have found that "[b]ecause the statutory exception of �2164(9) is for persons whose opposition to immunizations stems from genuine and sincere "religious" beliefs... the Court must first determine whether [petitioner's] purported beliefs are religious, and only if they are, determine whether those beliefs are genuinely and sincerely held" (Farina v. Bd. of Educ. of the City of New York, 116 F Supp 2d 503, 507).

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.K., 44 Ed Dept Rep 47, Decision No. 15,094; Appeal of C.R. and C.R., 44 id. 39, Decis ion No. 15,091). 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. 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., 44 Ed Dept Rep 47, Decision No. 15,094; Appeal of C.R. and C.R., 44 id. 39, Decision No. 15,091).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). For the reasons set forth below, I find that petitioner has met this burden.

In support of her request for a religious exemption, petitioner stated the following beliefs in documentation provided to respondent:

I now believe there is a Supreme God over us. That God protects us from illnesses using our immune system. This immune system is a gift from God. We are created in Gods image and we are not to defile ourselves. Immunizations show a lack of faith in God and the immune system that He created. It is a defilement of our bodies and a violation of our religious beliefs to receive them.

Man's intervention on a healthy body (e.g. vaccines) demonstrates a lack of faith in His judgment and His will. It would be like saying we trust man more than His holy words of protection and guidance. I believe it breaks unity of body and spirit, which is the foundation of my religious beliefs.

Vaccinating my children would cause me to sin against God, because God has laid it upon my heart not to subject them to further medical immunization. When God writes something on one's heart, one must be faithful to it.

Respondent's representatives met with petitioner in March of 2004. There is no transcript of the meeting in the record before me. However, respondent provided a list of questions that were asked of petitioner, a number of which are irrelevant to a religious exemption determination. For example, petitioner was asked whether her children received medical checkups by a licensed pediatrician or another licensed medical doctor and whether her religious beliefs precluded her from using medicine prescribed by a physician. Individuals need not oppose medical treatment perse to qualify for a religious exemption, but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis v. Sobol, 710 F.Supp 506).

Respondent argues that petitioner has had her children immunized in the past and that fact is in conflict with her current request for a religious exemption. Petitioner, however, maintains that her religious beliefs are long-standing, and asserts that societal and familial pressures cause d her to act against her religious beliefs. She claims that those pressures subsided after she was divorced and learned from her pediatrician that a legal religious exemption existed. She states, and respondent does not refute, that none of her children have been immunized since May of 2002. I find petitioner's explanation credible. The fact that an individual's children have been immunized in the past is not dispositive in determining whether such individual has genuine and sincere religious beliefs contrary toward immunizations (Lewis v. Sobol, 710 F.Supp 506).

Based on the record before me, I find that respondent based its determination, in part, on irrelevant information that it solicited from petitioner. I further conclude that the weight of the evidence supports petitioner's contentions. Petitioner did articulate a religious belief, and there is no evidence in the record that petitioner's position is based on philosophical, scientific, medical or personal preference. I find that respondent fails to adequately explain its rejection of otherwise convincing evidence. Although respondent refers to a purported New York State Department of Health memorandum, respondent did not submit a copy of such memorandum as part of the record in his appeal. On the record before me, I cannot, therefore, defer to respondent's assessment of petitioner's credibility to the extent such an assessment was made (Appeal of C.R. and C.R., 44 Ed Dept Rep 39, Decision No. 15,091).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent grant H.K. a religious exemption from the immunization requirements pursuant to Public Health Law �2164(9).

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