Appeal of C.D. and E.D., on behalf of their son E.D., from action of the Board of Education of the City School District of the City of North Tonawanda regarding immunization.

Decision No. 15,520

(January 23, 2007)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Bernard B. Freedman and Andrew J. Freedman, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of North Tonawanda (“respondent”) that their son, E.D., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained.

In August 2005, petitioners sent a letter to the principal of respondent’s Drake Elementary School requesting an immunization exemption for E.D. based on “sincere religious principles and beliefs.”  On September 15, 2005, E.D.’s father met with the district’s attorney and director of guidance (“director”) to discuss the nature of petitioners’ religious objections to the immunization requirements.  E.D.’s mother did not attend this meeting because she was working.

By letter dated September 22, 2005, the director informed petitioners that their request did not meet the requirements for granting an exemption because their objections to immunizations were rooted in philosophical, medical and scientific theories, and that E.D. would be excluded from school.  This appeal ensued.

Petitioners contend that they are entitled to a religious exemption for E.D. because their objections to immunizations are based on sincerely held religious beliefs.  They contend further that respondent denied them due process and violated their rights under the First and Fourteenth Amendments to the Constitution.  They allege that the district’s attorney and director did not act as neutral arbiters at the September 15 meeting and that respondent’s decision is arbitrary and capricious.

Respondent asserts that its determination to deny a religious exemption was not arbitrary or capricious and that petitioners’ objections to immunizations are not based on sincerely held religious beliefs.  Respondent maintains that E.D. was previously immunized, and that petitioners’ religious beliefs do not include a prohibition on taking E.D. to the doctor and giving him a blood transfusion.  Respondent submits that the Commissioner lacks jurisdiction over petitioners’ Constitutional claims.

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, subdivision 9 of that section 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 determination of whether E.D. qualifies for a religious exemption requires the careful consideration of two factors: whether petitioners’ purported beliefs are religious and whether the beliefs are genuinely and sincerely held (seeFarina v. Bd. of Educ. of the City of New York, et al., 116 F. Supp 2d 503).  It is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation in order to claim the statutory exemption (Sherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 F Supp 81).  However, the exemption 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, et al., 116 F Supp 2d 503).

     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 J.F. and D.F., 45 Ed Dept Rep 241, Decision No. 15,310; Appeal of L.K., 45 id. 10, Decision No. 15,243; Appeal of C.R. and C.R., 44 id. 39, Decision No. 15,091).  A parent/guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent/guardian objects to their child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of their child (10 NYCRR §66-1.3[d]).  If, after reviewing the parental statement, questions remain about the existence of a sincerely held religious belief, the principal may request supporting documents (id.).

     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 petitioners seek 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 petitioners have established that their beliefs are religious and are genuinely and sincerely held and thus are entitled to the requested relief.

At the September 15 meeting, petitioner produced a certificate that showed he was an ordained Melchizedek priest, read a prepared narrative into the record, and responded to questions.  He described the Melchizedek order as an interfaith, non-denominational religion.  He further explained that “[a]n ordained Melchizedek priest is someone who follows the understanding that God is within all of us.”  He explained that there are three aspects of God in the Melchizedek religion.  The first aspect is the omnipotent God that we cannot approach; the second is the “Christ consciousness” which is the perfection we strive to be; and the third is “Melchizedek consciousness,” which is the living energy form of God in our bodies.  He believes that factors such as bad foods, bad drugs and vaccinations, which are forms of diseases, can prevent the connection to Melchizedek consciousness.  In his words, “the body is the temple of Melchizedek consciousness.”

Although petitioners were raised Catholic, petitioner C.D. began to search outside this religion for answers to the “conundrum called God.”  He states that when a friend, also a Melchizedek priest, explained the religion, he “embraced [it] wholeheartedly.”

Religion and god are very personal parts of our life; God was in all forms, and our physical body was our first connection to God. Our physical body is the gateway, our temple for allowing the Melchizedek consciousness to merge with our physical body in real time, the third dimension, here and now.

...

We are teaching [our children] that God is in all forms, pure, unconditionally loving, nurturing and neutral.  We are teaching them to respect and nurture their natural physical body.  We are teaching them that the allowance of the diseases contained in the vaccinations and other contaminants into our physical temples is against maintaining the purity of our physical form in anticipation of merging with our Melchizedek (God) consciousness.  Simply stated, we are preparing ourselves to become one with God.

...

[W]e also understand that we are the form of God incarnate in our physical body.

     In an affidavit, petitioner E.D. explained how she and her husband have built a life together “on having a sincere and complete connection with God . . . we have taught our children that God is within us, as us, and that we are an expression of God in our thoughts, physical bodies, and our actions.”  She shares her husband’s belief that “God is who we are, and that God has provided us with a natural immunity that we should not doubt or question by putting toxic substances into us to create an unnatural immunity.”

Petitioner E.D. explained that she initially went against her religious beliefs and had her son E.D. inoculated because of the doctor’s recommendation, potential family disapproval and the possibility of future difficulties, such as school, but that afterward she realized that she had to trust her God and that continued vaccination would be hypocrisy to what she knew to be true and real to her and her husband. Petitioners have not had their younger daughter immunized.

The fact that petitioners would consent to medical treatment of a sick child is not necessarily determinative.  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, et al. v. Sobol, et al., 710 F Supp 506).

Based on the record before me, I conclude that the weight of the evidence supports petitioners’ contentions that their opposition to immunization stems from sincerely held religious beliefs.  Although petitioners’ religious beliefs may encompass some aspects of alternative practices, such as Chakra breathing, that does not necessarily require the conclusion that they are not religious beliefs, in the same way that the fact that one’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, et al. v. Sobol, et al., 710 F Supp 506).  Both petitioners consistently articulated their religious beliefs, and there is no evidence that their position is based solely on philosophical, scientific, medical or personal preference.  On the record before me, I cannot, therefore, defer to respondent’s assessment of petitioners’ 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).

In light of this determination, I need not address petitioners’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent grant E.D. a religious exemption from the immunization requirements pursuant to Public Health Law §2164(9).

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