Decision No. 16,180
Appeal of L.S., on behalf of her daughter P.S., 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. 16,180
(December 9, 2010)
Michael A. Cardozo, Corporation Counsel, attorney for respondents, Samantha Springer, Esq., of counsel
STEINER, Commissioner.--Petitioner appeals 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 her daughter, P.S., 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, P.S. attended I.S. 93 in Queens, New York. In November 2009, P.S. brought home a “Notice of Exclusion from School Due to Incomplete Immunization” (“notice”) from the principal. The notice contained a box labeled “Date” in which “December 7, 2009” appeared. The notice stated that petitioner had “not complied with the warning notice ... regarding the need for [P.S.] to receive” the tetanus, diphtheria and pertussis (“Tdap”) vaccine and that P.S. would be excluded from school “after today.” Petitioner alleges that she received no previous immunization notices.
On December 7, 2009, P.S. was sent home from school. That same day, petitioner emailed the principal objecting to P.S.’s “precipitous” exclusion from school and DOE’s failure to provide her with “14 days to comply with the law.” She also submitted a “Request for Religious Exemption to Immunization Form” (“form”) for P.S.
In a four-page letter attached to the form (“December 7 letter”), petitioner explained that she was raised as an Eastern Orthodox Christian. Petitioner stated that, “about three years ago,” she experienced a “deep spiritual awakening during which [she] felt one with God and the Holy spirit” and started “searching for answers that seemed to lack an answer before, and that included my uneasy feeling and guilt that followed when my children were vaccinated, and compounded by the learning problems my children developed during the years.” Petitioner also noted that her spiritual awakening “coincided” with her “discovery” that parents could obtain religious exemptions.
Specifically, petitioner described her belief that “vaccines are poison,” “our blood is the embodiment of the [divine] spirit,” and humans are not “to tamper with the blood.” Petitioner further stated:
There may be many reasons for disease, but they are all controlled and established by God and Divine Forces. Medically invasive measures of the character of vaccination, on a healthy body, shows a paucity of faith in God’s judgment and will. It’s like saying that we trust man more than God and [sic] Holy Spirit that has created all things.
Petitioner cited several Bible passages as the basis for her beliefs, including:
- “You must know that your body is a temple of the Holy Spirit, who is within the spirit you have received from God. You are not your own.” (1st COR 6:19)
- “If you diligently heed the voice of the Lord your God and do what is right in His sight, give ear to His commandments and keep all His [statutes], I will put none of the diseases on you which I brought on the Egyptians. For I am the Lord who heals you.” (Exodus 15:26)
Petitioner acknowledged that she had vaccinated her children in the past, stating that she “felt threatened and felt that [she] had no choice but to agree to vaccinate.” Petitioner explained that she witnessed her children “crying and screaming while the vaccines were administered, and then fall into a feverish stupor after and sleep for several hours. [I]t was very evident from these reactions that something was wrong.” Petitioner stated:
[A]dditional confirmation emerged: Both of my youngest children [P.S. and G.S.] developed ADHD and ADD, and my son [G.S.] has been getting speech therapy for a long time and still has learning problems. It was my faith in God and my intuition that told me vaccination is wrong even when I was forced to vaccinate....
. . .
My intuition tells me that I have to protect my kids from any further harm. If the purpose of mandatory vaccination is to prevent disease, I must disagree because these forced vaccinations have had horrible effects. We are seeing many children today with immune, neurological, developmental and chronic illnesses due to vaccinations. It’s against my faith in God to ignore these facts.
On December 14, 2009, petitioner emailed the principal asking him to permit P.S. to attend school while respondents reviewed her exemption request. In response, the principal emailed that he had forwarded petitioner’s exemption request to DOE’s health director for review. On December 15, 2009, petitioner was notified that P.S. would be permitted to return to school the following day.
By memorandum dated December 23, 2009, the coordinator responded to petitioner’s 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. [G.S. and D.S.’s] immunization records are complete[.]
The coordinator further noted that additional documentation must be provided within 10 school days and that petitioner could appeal a denial of a religious exemption by “arranging an interview with your ISC [Integrated Service Center] Health Director within ten school days of receipt of [a denial] letter. During the appeal process, your child will be permitted to remain in school.”
By letter dated January 2, 2010, petitioner informed the coordinator that her December 7 letter did address the required elements and provided references to specific paragraphs in her December 7 letter corresponding to each element. On January 21, 2010, the coordinator denied petitioner’s request for a religious exemption, informed petitioner of DOE’s appeal process and notified her that if her appeal was denied, she could commence an appeal to the Commissioner of Education pursuant to Education Law §310.
In a January 26, 2010 letter, the I.S. 93 assistant principal attempted to “clarify” the coordinator’s January 21, 2010 denial. The assistant principal stated that petitioner’s “initial letter describing [her] request for religious exemption, and the subsequent letter ... submitted to clarify the original request, were evaluated and it was determined that the information was not sufficient to warrant an exemption.” The assistant principal urged petitioner to “exercise [her] right to appeal in a face-to-face interview” and stated that P.S. would be allowed to remain in school during the pendency of any such appeal.
Thereafter, petitioner received a third notice, dated February 12, 2010, informing her that, because she had neither complied with the previous warning notices nor appealed respondents’ denial of her exemption request, P.S. would be excluded from school after February 12, 2010. This appeal ensued. Petitioner’s request for interim relief was denied on March 5, 2010.
Petitioner argues that the denial of her request for a religious exemption was arbitrary and capricious and that she is entitled to an exemption for P.S. because her objections to immunization are based on sincerely held religious beliefs. Petitioner also contends that respondents failed to provide her with specific reasons for the denial of her religious exemption request and objects to respondents’ “cavalier delivery of notices, ambiguous form letter, and wrongful exclusion procedures.” Petitioner seeks a religious exemption for P.S. pursuant to PHL §2164.
Respondents contend that the determination was not arbitrary or capricious because petitioner’s objections to immunizations are not based on genuinely and sincerely held religious beliefs, but rather are based primarily on her moral objections to and the potential adverse medical consequences of immunization.
Initially, I must address petitioner’s memorandum of law, which was both drafted and signed by Gary Krasner, Director of the Coalition for Informed Choice. In this regard, I take administrative notice of Appeal of Y.R. and C.R. (50 Ed Dept Rep __, Decision No. 16,165), in which I rejected petitioners’ memorandum of law because it was impermissively drafted and signed by Mr. Krasner. 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. As in Appeal of Y.R. and C.R., Mr. Krasner is neither a party nor an attorney authorized to represent petitioner. Accordingly, I will not consider the memorandum of law submitted by Mr. Krasner in the instant appeal.
Pursuant to §276.5 of the Commissioner’s regulations, petitioner has also requested consideration of a reply to respondents’ memorandum of law. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).
According to petitioner, this reply is intended to “support the admissibility” of her memorandum of law as well as to challenge the admissibility of and “cure the prejudicial effects” of respondents’ memorandum of law “as it relates to misrepresentations of evidence.” While much of petitioner’s reply to respondents’ memorandum of law appears to restate the allegations described in the petition and other pleadings, I note that petitioner makes several attempts to buttress allegations in the petition and to add new claims against respondents. Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, while I have accepted petitioner’s reply to respondents’ memorandum of law for consideration, I have not considered those portions that serve to buttress allegations in the petition and to add new claims against respondents. I also note that, because Mr. Krasner’s memorandum of law will not be considered, neither will the portions of petitioner’s reply to respondent’s memorandum of law that relate to such document.
Petitioner also submits a letter dated September 29, 2010 addressing my August 30, 2010 decision in Appeal of D.W. and N.W. (50 Ed Dept Rep __, Decision No. 16,144), of which I take administrative notice. Respondents urge that I reject petitioner’s September 29, 2010 letter as it seeks to advance new claims and arguments not raised in the pleadings. However, while several aspects of petitioner’s September 29, 2010 letter are unclear, to the extent that such letter argues for the application of Appeal of D.W. and N.W. to the facts of this case, I have considered it. Finally, as noted above, because Mr. Krasner’s memorandum of law will not be considered, neither will the portions of petitioner’s letter that relate to such document.
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 petitioner qualifies for a religious exemption requires the careful consideration of two factors: whether her 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 S.B., 48 id. 332, Decision No. 15,875; Appeal of L.S., 48 id. 227, Decision No. 15,845). 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 the 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 petitioner’s statements 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of S.B., 48 id. 332, Decision No. 15,875; Appeal of L.S., 48 id. 227, Decision No. 15,845).
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).
Petitioner contends that the first notice, which she received on November 27, 2009, was “improperly dated and delivered thereby shortchanging her on the number of days by which she had to comply.” Petitioner provides no explanation of or evidence to support her claim that the notice was improperly delivered. As a result, I find that petitioner has not carried her burden with respect to this claim, which must therefore be dismissed.
I also find no merit to petitioner’s claim that the first notice was “improperly dated.” Respondents explain that the December 7, 2009 date listed on the first notice represented the effective date of P.S.’s exclusion from school. Indeed, in her verified petition, L.S. acknowledges that “[p]resumably the 7th would be the prospective date of exclusion for non-compliance with the notice’s directive to administer [the] Tdap vaccination to [P.S.].” Under these circumstances, I cannot conclude that the first notice was “improperly dated” as alleged by petitioner. However, to avoid future confusion as to whether the box labeled “Date” on the notice is intended to refer to the date of exclusion, as opposed to the date on which the notice was issued, I encourage respondents to clarify their notices surrounding immunizations in response to this concern.
Petitioner also maintains that P.S. was wrongfully excluded from class from December 7 through December 15, 2009. In this regard, I take judicial notice of Chancellor’s Regulation A-701(III)(A)(4)(b)(ii), which specifically states that when a parent submits a request for a religious exemption, “[s]tudents will be permitted to attend school until [an] initial determination is made.” The record indicates that an initial determination was made on December 23, 2009 and respondents admit that, subsequent to receiving petitioner’s request on December 7, 2009, P.S. was excluded from school until on or about December 16, 2009. Such action violates the letter of respondents’ own regulation and I admonish respondents to comply with Chancellor’s Regulation A-701(III)(A)(4)(b)(ii) in handling religious exemption requests. In addition, I remind respondents to implement all applicable Chancellor’s Regulations and policies in a manner consistent with PHL §2164(7)(a), which states that “[n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days without the certificate” or other evidence of immunization.
Petitioner also argues that respondents failed to provide her with sufficient explanation of the reasons for the denial of her request for a religious exemption. To support her position, petitioner cites guidance from the State Education Department (“Department”), which states that a principal must communicate a decision to deny a request for a religious exemption 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 23, 2009 form letter used in this case adequately described some of the reasons for the preliminary determination to deny petitioner’s request. Respondents submit an affidavit by the coordinator stating that petitioner’s request failed to “state the particular religious basis that prohibits the Tdap booster.” The coordinator also states that petitioner’s December 7 letter “seemed formulaic” and that she “recognized [such letter] to be similar, if not identical in substance, to letters submitted by other parents....” She further notes that the letter “did not indicate the specific vaccine [petitioner] was opposed to, rather it simply stated in conclusory terms, that [petitioner] was requesting exemption ‘from the immunization requirements, because I hold religious beliefs which are contrary with these medical concept [sic].’” The coordinator’s sworn statement is consistent with her December 23, 2009 memorandum, in which she specifically requested that petitioner “[e]xplain in [her] own words” the reasons for her request, “[d]escribe the religious principles that guide [her] objection to immunization,” and “[i]ndicate whether [she is] opposed to all immunization, and if not, the religious basis that prohibits particular immunizations.” Petitioner’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 21, 2010 memorandum reiterated the December 23, 2009 preliminary denial. Taken together, the two memoranda apprised petitioner of most of respondents’ concerns.
In her September 29, 2010 letter, petitioner contends that respondents violated her due process rights by seeking “supporting documents at the same moment it issue[d] a denial notice” (emphasis in original). To support her argument, petitioner relies on my recent decision in Appeal of D.W. and N.W. (50 Ed Dept Rep __, Decision No. 16,144). In that case, respondent denied petitioners’ request without seeking “any supporting documents or other information from petitioners to further explain or clarify their religious beliefs. Even though respondent is in the best position to assess petitioners’ credibility, there is no indication that an assessment of credibility was made. Instead, respondent rejected petitioners’ application ... without further examination....” Contrary to petitioner’s assertion, Appeal of D.W. and N.W. is clearly distinguishable on its facts from the instant appeal. As described above, in response to petitioner’s exemption request, the coordinator sought additional information in her December 23, 2009 initial denial memorandum. After further examination of petitioner’s request, including her January 2, 2010 submission, the coordinator’s January 21, 2010 memorandum reiterated the December 23, 2009 preliminary denial. Moreover, as described below, the record also contains evidence that the coordinator made an assessment of petitioner’s credibility based on the information provided.
I note, however, that the coordinator’s January 21, 2010 memorandum fails to provide any rationale or explanation for the denial of petitioner’s 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 also indicates that she questioned petitioner’s assertion that she experienced a “spiritual awakening” three years prior to her December 2009 religious exemption request. Specifically, the coordinator points out that petitioner immunized her son D.S. as recently as August 1, 2007 – approximately eight months after such “awakening.” However, other than the vague statement that “[I]mmunization records [for petitioner’s two other children] are complete,” the coordinator’s December 23 memorandum reveals no indication that respondents questioned this particular aspect of petitioner’s exemption request. Nevertheless, while petitioner did not have the opportunity to respond to this particular concern prior to respondents’ denial of the exemption request, the issue was raised in respondents’ answering papers and petitioner has now had sufficient opportunity to address it.
In her reply, petitioner merely objects to the coordinator’s inability “to reconcile” petitioner’s “original and forthright narrative” regarding her “spiritual awakening” with vaccination records indicating that D.S. had been vaccinated in August 2007. Moreover, petitioner submitted a reply affidavit in which she explains only that she drafted her own original religious statement using the “toolkit” provided by an advocacy group. Petitioner provides no further detail that would explain the inconsistency identified by respondents. 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 petitioner’s statements. Although not dispositive on the issue of the existence of sincerely held religious beliefs, the contradiction identified by respondents is relevant to petitioner’s credibility. As a result, I find that respondents did not act unreasonably in considering this issue in the context of assessing petitioner’s credibility.
Upon careful consideration of the entire record, I find that petitioner has failed to carry her burden of establishing that her opposition to immunization stems from sincerely held religious beliefs. My decision is not based on the fact that petitioner previously immunized P.S. and her siblings. 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, et al. v. Sobol, et al., 710 F Supp 506; Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of K.E., 48 id. 54, Decision No. 15,792).
Rather, I find that the record before me supports respondents’ determination that petitioner’s request for a religious exemption was based upon her fear of an adverse reaction to immunizations rather than upon her religious beliefs. For example, in her December 7 letter, petitioner describes the “horrible effects” – including ADHD and ADD – that vaccinations have had on her children. Petitioner states:
I can no longer desecrate my children’s blood by giving them vaccines made from foreign, foul ingredients containing aborted fetal cells, bovine serum, chicken embryos, and toxic chemicals like mercury, aluminum, formaldehyde and thimerosal. I believe it’s my moral duty to make sure my children grow up as healthy as possible and vaccines by introducing foreign matter into the blood can’t be good. Perhaps the most egregious sin of all is to utilize a medical procedure that profits from the abortion upon healthy human fetuses. That, I learned, was irrefutable and concluded the matter for me.
Petitioner’s general statements, including that her “findings about what these vaccines ... are actually made of disgusted me” as well as those regarding her concern for the health and safety of her children, evince personal and medically-based beliefs regarding the risks of administering vaccines, rather than deeply held religious objections to immunizations. Moreover, petitioner has not adequately explained why she proceeded to immunize D.S. in August 2007, despite the “spiritual awakening” in approximately December 2006 that led her to question the practice of immunization.
As noted above, petitioner also objects to “a medical procedure” that “profits” from abortion. However, petitioner fails to establish any nexus between her claimed religious objection to abortion and the practice of vaccination. For example, petitioner does not specify or provide any evidence to indicate how and which, if any, vaccines actually “profit” from “abortion.” As a result, I find that petitioner has not carried her burden of proof on this claim. Further, I find that petitioner’s citations to biblical verses and passages are not sufficient to establish that she holds genuine and sincere religious beliefs against immunization (seeAppeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971).
The record reflects that petitioner sincerely objects to immunizations, but the crux of the issue is whether the reasons for her 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 petitioner has failed to demonstrate that her 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 consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE.
 I note that the record also contains a second notice from the principal bearing the date of December 21, 2009, which, as petitioner points out, was prior to the coordinator’s December 23, 2009 memorandum. Petitioner contends that the second notice was sent home with P.S. on January 15, 2010.
 I take administrative notice of a December 7, 2009 memorandum from the coordinator submitted in connection with a related appeal (Appeal of Y.R. and C.R., 50 Ed Dept Rep __, Decision No. 16,165). But for the inclusion of the phrase “[I]mmunization records [for petitioner’s two other children] are complete,” the coordinator’s December 23 memorandum to petitioner in the instant appeal is identical to her December 7 memorandum in Appeal of Y.R. and C.R. (50 Ed Dept Rep __, Decision No. 16,165). 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.