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Decision No. 16,165

Appeal of Y.R. and C.R., on behalf of their son H.R., from action of the New York City Department of Education, Joel I. Klein, as Chancellor, and Julia Sykes, as Health Service Coordinator, regarding immunization.

Decision No. 16,165

(November 3, 2010)

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Samantha Springer, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“DOE”), Chancellor Joel I. Klein, and Health Service Coordinator Julia Sykes (“coordinator”)(collectively “respondents”) that their son, H.R., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2009-2010 school year, H.R. attended sixth grade at M.S. 180 in Bronx, New York.  In November 2009, petitioners received a “Final Notice Regarding Immunization and Exclusion from School” (“notice”) from the principal stating that they had not complied with a previous notice to ensure H.R. had received the tetanus, diphtheria and pertussis (“Tdap”) vaccine and that, if H.R. did not receive the “proper vaccinations as required by law,” he would be excluded from school.

In response, petitioners submitted a “Request for Religious Exemption to Immunization Form” (“form”) and statement (“statement”) in which Y.R. explained that vaccination was against her religious beliefs and that the “Source of these beliefs is Christianity based on the word of God, found in the Bible.”  Y.R. stated that she believes that “our ultimate salvation rests with God’s laws and not in the laws of man” and that “we are created in the image  of God (So God created man in his own image.... Genesis 1:27) and that we have been given an immune system by God to ... naturally protect us against disease.”  According to Y.R.:

By immunizing I believe that you are making a statement that you can control God’s plan and intent for you....  You are putting faith in man, above faith in God, for your health....  Vaccinations cannot keep us healthy, it can only be done by right thinking as prescribed by Jesus (“Jesus said unto him, If thou canst believe, all things are possible....”  Mark 9-23).

Y.R. also stated that vaccines contain “aborted fetal tissue” and, because she believes that “abortion is murder in the eyes of God, it follows that injecting genetic material of aborted fetuses into my children is immoral.”

By memorandum dated December 7, 2009, the coordinator responded to petitioners’ request, stating:

This request based on documents submitted, is denied at this time and until such time that the parent/guardian provide [sic] a written explanation of his/her religious belief opposing immunization.  A letter ... simply indicating that a parent has such a religious belief, without any further explanation, is inadequate to support the granting of an exemption.

The coordinator noted that the statement must address the following elements:

  • Explain in your own words why you are requesting this religious exemption.  Please note: letters from internet is [sic] not acceptable.
  • Describe the religious principles that guide your objection to immunization.
  • Indicate whether you are opposed to all immunization, and if not, the religious basis that prohibits particular immunizations.  Please note previous vaccines on file.

The coordinator further noted that additional documentation must be provided within 10 school days and that petitioners could appeal a denial of a religious exemption by “arranging an interview with your ISC [Integrated Service Center] Health Director within 10 school days of receipt of [a denial] letter.  During the appeal process, your child will be permitted to remain in school.”

By letter dated December 18, 2009, Y.R. informed the coordinator that her November statement did address the required elements and provided references to specific paragraphs in her November statement corresponding to each element.  On January 27, 2010, the coordinator denied petitioners’ request for a religious exemption, informed petitioners of DOE’s appeal process and notified them that if their appeal was denied, they could commence an appeal to the Commissioner of Education pursuant to Education Law §310.

In addition, the health intern at M.S. 180 sent petitioners notices dated February 5 and February 12, 2010 informing them that H.R. would be excluded from school, as of March 1, 2010 according to the latter, if he was not appropriately immunized.  This appeal ensued.[1]  Petitioners’ request for interim relief was denied on March 19, 2010.

Petitioners assert that the denial of their request for a religious exemption was arbitrary and capricious and that they are entitled to an exemption because their objections are based on sincerely held religious beliefs.  They also contend that respondents failed to provide them with specific reasons for the denial of their request.  Petitioners seek a religious exemption for H.R. pursuant to PHL §2164.

Respondents contend that petitioners failed to provide sufficient information to support a religious exemption, that its determination was rational, not arbitrary or capricious, and in all respects proper.

Initially, I must address petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  As discussed more fully below, prior to receiving respondents’ verified answer, petitioners were not fully apprised of, and did not have adequate opportunity to respond to, at least one of the specific reasons underlying the denial of their request.  Accordingly, I will consider those portions of petitioners’ reply that are responsive to such material first raised in the answer.  However, I will not consider those portions of petitioners’ reply that attempt to buttress allegations in the petition or belatedly add assertions that should have been in the petition.

Respondents seek exclusion of petitioners’ memorandum of law because it was impermissively drafted and signed by Gary Krasner, Director of the Coalition for Informed Choice.  Pursuant to §275.15 of the Commissioner’s regulations, an individual party may represent himself or herself before the Commissioner or may be represented by an attorney.  Mr. Krasner is neither a party nor an attorney authorized to represent petitioners.  Accordingly, I will not consider the memorandum of law submitted by Mr. Krasner.

Petitioners have also requested consideration of two additional documents.  The first, an affidavit by Gary Krasner dated April 15, 2010, will not be considered, as it contains information that was available to petitioners prior to initiation of the appeal and should therefore have been included with the petition.  Petitioners also submit a letter dated September 29, 2010, addressing Appeal of D.W. and N.W. (50 Ed Dept Rep __, Decision No. 16,144) issued on August 30, 2010.  They present the letter in further support of arguments set forth in Mr. Krasner’s memorandum of law.  Although I take administrative notice of the decision in Appeal of D.W. and N.W., because Mr. Krasner’s memorandum of law will not be considered, neither will the September 29, 2010 letter.

Turning to the merits, 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.

The determination of whether petitioners qualify for a religious exemption requires the careful consideration of two factors:  whether petitioners’ purported beliefs are religious 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 district officials (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).  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 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 and sincerity of petitioners’ statements and may consider petitioners’ 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners assert that respondents failed to provide sufficient explanation of the reasons for denying their request for a religious exemption from the immunization requirements of PHL §2164.  Petitioners rely on guidance from the State Education Department (“Department”), which states that a decision to deny a request for a religious exemption must be in writing and “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”

It appears that the December 7, 2009 form letter used in this case[2]adequately described some of the reasons for the preliminary determination to deny petitioners’ request.  Respondents submit an affidavit by the coordinator stating that petitioners’ request “did not state the particular religious basis that prohibits the Tdap booster.”  She explains that Y.R.’s statement “seemed formulaic, and I recognized it to be similar, if not identical in substance, to letters submitted by other parents....”  She also notes that the statement failed to indicate the specific vaccines petitioners opposed and instead “simply stated in conclusory terms” that Y.R. was requesting an exemption because “vaccination is against [her] religious beliefs.  The Source of these beliefs is Christianity.”  The coordinator’s sworn statement is consistent with her December 7, 2009 memorandum, in which she specifically requested that petitioners “[e]xplain in [their] own words” the reasons for their request, “[d]escribe the religious principles that guide [their] objection to immunization,” and “[i]ndicate whether [they are] opposed to all immunization, and if not, the religious basis that prohibits particular immunizations.”  Y.R.’s response to that memorandum was identical to her initial statement.  Thus, after considering the additional documentation presented, which added nothing more to the information previously provided, the coordinator’s January 27, 2010 memorandum reiterated the December 7, 2009 preliminary denial.  Taken together, the two memoranda apprised petitioners of some of respondents’ concerns.[3]

Nevertheless, I note that the coordinator’s January 27, 2010 memorandum fails to provide any rationale or explanation for the denial of petitioners’ request.  As noted above, the Department’s guidance specifically states that a decision to deny a request for a religious exemption must be in writing and “must address the specific reasons for the denial.”  Respondents are therefore reminded of the obligation to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the Department’s guidance.

The coordinator’s affidavit further explains that, in reviewing petitioners’ request, she considered H.R.’s immunization history.  In her view, Y.R.’s statement that petitioners had delayed administering vaccines to H.R. as long as possible was inconsistent with H.R.’s medical records, which “indicate that he has received all of his required vaccinations in a timely manner, except for the one Tdap booster.”  Respondents now argue that this was a “critical contradiction ... which needed to be resolved before the religious exemption could be approved.”  However, other than the vague statement “Please note previous vaccines on file,” the December 7 memorandum reveals no indication that this issue was one of “critical” concern.  Nevertheless, while petitioners did not have the opportunity to respond to this particular “critical” concern prior to respondents’ denial of the exemption request, the issue was raised in respondents’ answering papers and petitioners have now had sufficient opportunity to address it. 

With respect to this “critical” concern, petitioners have submitted an affidavit by Y.R. stating that, prior to 2003, “when our doubts about vaccination were growing,” she and C.R. “made a few attempts” to delay H.R.’s vaccinations and that they “[s]ometimes ... postponed or cancelled” H.R.’s doctor’s appointments.  According to Y.R., when petitioners did take H.R. to the doctor, “we asked if we could delay the shots, but the doctor always told us that was not possible.”  Moreover, in her November 2009 statement, Y.R. explained that she and C.R. “eventually” allowed H.R. to be vaccinated because they felt “extraordinary pressure from doctors to adhere to the state mandated schedule and we feared negative repercussions from schools and investigation by child welfare agencies.”  However, while Y.R.’s statements tend to explain why she and C.R. felt compelled to immunize H.R., they do not explain the contradiction noted by respondents – that H.R.’s medical records fail to reflect any delays.  Rather, according to respondents, all of H.R.’s vaccinations, except for the Tdap booster, were administered in a timely fashion despite petitioners’ claims that they attempted to delay them.  As noted above, in determining whether beliefs are religious in nature and sincerely held, school officials must make a good faith effort to assess the credibility and sincerity of petitioners’ statements.  Although not dispositive on the issue of the existence of sincerely held religious beliefs, the contradiction identified by respondents is relevant to petitioners’ credibility.  As a result, I find that respondents did not act unreasonably in considering this issue in the context of assessing petitioners’ credibility.

Upon careful consideration of the entire record, I find that petitioners have failed to carry their burden of establishing that their opposition to immunization stems from sincerely held religious beliefs.  Petitioners’ general statements evince personal and philosophical beliefs regarding vaccines, rather than deeply held religious objections to immunizations.  For example, Y.R. explains:

[M]ost disease has a spiritual and a physical cause and can be healed through faith, along with specific safe, non-toxic, natural substances that God put on this earth in order to support the immune system to heal and or [sic] prevent disease such as pure clean water, natural organically grown food and naturally occurring vitamins, minerals, herbs, homeopathic substances, etc.  To use an unnatural, man-made, lab-created, synthetically derived chemical substance to supposedly induce immunity against disease is not in sync with our strict religious beliefs.

Y.R. also maintains that she is opposed to abortion “based upon [her] faith” and contends, generally, that vaccines contain “aborted fetal tissue.”  However, other than such broad statements, petitioners fail to establish any nexus between their claimed religious objection to abortion and the practice of vaccination.  For example, petitioners do not specify or provide any evidence to indicate which, if any, vaccines actually contain “aborted fetal tissue.”  As a result, I find that petitioners have not carried their burden of proof on this claim.  Finally, petitioners’ citations to biblical verses and passages, without more, are not sufficient to establish that they hold genuine and sincere religious beliefs against immunization (seeAppeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971).

The record reflects that petitioners sincerely object to immunizations, but the crux of the issue is whether the reason for petitioners’ objections are religious or predominantly philosophical, personal, medical or ethical in nature (seeCaviezel v. Great Neck Public Schools, et al., 701 F Supp 2d 414 [EDNY 2010]).  Under the totality of the circumstances, I find that petitioners have failed to demonstrate that their opposition to immunization stems from sincerely held religious beliefs or that respondents’ determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal, therefore, must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1]By letter dated March 17, 2010, DOE notified my Office of Counsel that, on March 4, 2010, petitioners removed H.R. from DOE’s schools and, pursuant to section 100.10 of the Commissioner’s regulations, submitted a letter of intent to home school H.R. for the remainder of the 2009-2010 school year.

[2]I take administrative notice of a December 23, 2009 memorandum from the coordinator submitted in a similar appeal currently before me (Appeal of L.S., Appeal No. 19,093).  But for the omission of one phrase, the coordinator’s December 7 memorandum in this appeal is identical to her December 23 memorandum in Appeal of L.S. (Appeal No. 19,093).  However, although it appears that DOE has used form letters to respond to parents who request a religious exemption, I cannot conclude that such practice is perse unreasonable.  In a school district of DOE’s size and organizational complexity, modified form letters may be an efficient and effective means of communicating with parents in certain situations.

[3]Although not set forth as a basis for relief in their petition, petitioners describe respondents’ procedures in processing exemption requests as somewhat confusing.  The coordinator’s December 7, 2009 memorandum did afford petitioners an opportunity to submit additional documentation for consideration in connection with their request.  However, the memorandum also indicated that the request was “denied at this time” setting forth some of the reasons therefor, and conditional upon the submission of additional documentation.  In contrast with Appeal of D.W. and N.W., 50 Ed Dept Rep ___, Decision No. 16,144), respondents did request supporting documentation prior to their ultimate denial and petitioners did provide a response to the December 7, 2009 memorandum.  Nevertheless, respondents are urged to review their communications to ensure clarity in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions.