Appeal of L.S., on behalf of his son M.S., from action of Yeshiva of Spring Valley regarding immunization.

Decision No. 15,845

(November 13, 2008)

Boies, Schiller & Flexner LLP, attorneys for respondent, Motty Shulman, Esq., of counsel

Mills, Commissioner.--Petitioner appeals the determination of Yeshiva of Spring Valley (“respondent”) that his son, M.S., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.[1] The appeal must be sustained.

On or about June 13, 2008, petitioner submitted to respondent a signed and notarized copy of the State Education Department’s (“Department”) “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”).  On the form, petitioner requested an immunization exemption for M.S. based on his “sincere and genuine religious belief that immunizations are prohibited.”

On July 16, 2008, respondent denied petitioner’s request by marking the appropriate box on the Department’s form and drawing a line through the space in which the building principal was instructed to “State Specifically Reason(s) for Denial.”  This appeal ensued.  Petitioner’s request for interim relief was granted on August 12, 2008.

Petitioner contends that he is entitled to a religious exemption for M.S. because his objections to immunization are based on sincerely held religious beliefs.  As support for his position, petitioner notes that the East Ramapo Central School District previously granted exemptions for M.S.’s siblings based on the same objections.

Respondent maintains that the appeal must be dismissed because petitioner’s objections to immunization are not based on sincerely held religious beliefs.

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, §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.

Whether M.S. qualifies for a religious exemption requires the careful consideration of whether petitioner’s purported beliefs are religious in nature and, if so, whether such religious 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 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 officials (Appeal of K.E., 48 Ed Dept Rep __, Decision No. 15,792; Appeal of R.P. and R.P., 47 id. 124, Decision No. 15,648; Appeal of C.D. and E.D., 46 id. 317, Decision No. 15,520).  A parent/guardian who seeks a religious exemption must submit a written and signed statement to the school 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 or person in charge of a school may request supporting documents (10 NYCRR §66-1.3[d]).

In determining whether beliefs are religious in nature and sincerely held, 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 L.K., 45 Ed Dept Rep 10, Decision No. 15,243; Appeal of D.K., 44 id. 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

The record indicates that, together with the Department’s form, petitioner provided respondent with a written explanation of his religious beliefs, including:

It says in Genesis 1.27 “So G-d created Man in His image...”  Man was created in the perfect image of G-d.  G-d knows what He is doing.  There is no reason to improve on G-d’s work .... I believe by immunizing we are challenging G-d’s perfect design of man.

We are commanded to trust and have faith in G-d.  There are numerous [Biblical] verses that stress this point, some examples being Jeremiah 17.7 “Blessed is the man who trusts in Hashem (G-d)...”  Immunization goes against this faith.  By immunizing we are in effect saying that we do not believe that G-d created a body that is capable of fighting off disease on its own.  We are relying on man instead of G-d.

In Leviticus 12.3 G-d commands every Jewish male should be circumcised... From here I derive that this is the only thing G-d wants us to do to complete His design of the human body, and everything else should be left as G-d intended it to be.

Unless there is danger to life, a Jew is not allowed to drive a car on Shabbos (Saturday).  There is no verse in the Torah that mentions this fact.  The reason is obvious – car was invented after G-d gave Torah to the Jewish people.  So how do we know that a Jew is not allowed to drive a car on Shabbos?  We know that Jew [sic] cannot make fire on Shabbos.  In the process of driving a car fire is created inside the car’s engine.  So this is one of the sources for the prohibition of driving a car on Shabbos.  Similarly, there is no verse in the Torah that prohibits immunization.  Same reason holds – immunizations were invented after Torah was given.  However, in Leviticus 19.28 it says “You shall not make a cut in your flesh for the dead, and a tattoo shall you not place upon yourselves ....” So Torah prohibits introducing a foreign substances [sic] into the body.  This is exactly what vaccines are.

As noted above, respondent denied petitioner’s request without rationale or explanation, merely marking the appropriate box on the Department’s form and drawing a line through the space in which the building principal was instructed to provide specific reasons for denial.  In its verified answer, respondent now asserts that petitioner’s claim is “founded upon medical or purely moral considerations, scientific or secular theories or philosophical and personal beliefs that do not meet the requirements” of PHL §2164.  Respondent further contends that “[p]etitioner’s claims are without any basis in Jewish law or tradition.  Indeed, it is well accepted in Jewish law and tradition that the biblical obligation to guard one’s health includes taking necessary preventive measures such as immunization.”  Aside from its own assertions, however, respondent fails to identify any specific examples to support its characterization of petitioner’s beliefs.  Nor is there any indication on the record before me that respondent requested any supporting documents or other information from petitioner to further explain or clarify his religious beliefs.

Based on the record before me, I find the weight of the evidence supports petitioner’s contention that his opposition to immunization stems from religious beliefs.  Respondent’s argument that petitioner’s objection to immunization is not based on Jewish law or tradition is of no merit.  As stated above, it is not necessary for a person to be a member of an organized religion which opposes immunization to claim the exemption.  Contrary to respondent’s assertion, there is nothing in the record which establishes that petitioner’s objection to immunization is based solely on philosophical, scientific, medical or personal preference.  Petitioner’s beliefs and his objection to immunization appear to be principally based upon his interpretation of Biblical passages and concepts and practices found in the Jewish faith and are accordingly religious in nature.  

I further note that respondent does not argue that petitioner’s beliefs are not sincerely held.

THE APPEAL IS SUSTAINED.

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

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