Appeal of O.M. and R.M., on behalf of their children X.J.M. and S.B.M., from action of the Board of Education of the East Hampton Union Free School District, Superintendent Raymond D. Gualtieri and Principals Christopher Tracey and Tom Lamorgese regarding immunization.

Decision No. 16,267

(July 22, 2011)

Thomas W. Horn, Jr., Esq., attorney for petitioners

Cooper, Sapir & Cohen, PC, attorneys for respondents, Robert E. Sapir, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the East Hampton Union Free School District, Superintendent Raymond Gualtieri, Elementary School Principal Christopher Tracey, and Middle School Principal Tom Lamorgese (collectively “respondents”) that their children, X.J.M. and S.B.M., are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained to the extent indicated and remanded.

The record indicates that, in 2005, the district granted a religious exemption for petitioners’ son, X.J.M., who attended elementary school in the district.  On August 5, 2008, the district’s elementary school principal denied petitioners’ request for a religious exemption for S.B.M. as part of her enrollment in kindergarten (“2008 request”).  Thereafter, while the district agreed to permit X.J.M. to continue attending its schools pursuant to the 2005 exemption, petitioners withdrew X.J.M. from the district and enrolled both children in nonpublic schools.

By letter dated January 29, 2011, petitioners requested religious exemptions for the 2011-2012 school year for X.J.M., who would be attending middle school, and S.B.M., who would be attending elementary school (“2011 request”).  To support such request, R.M. submitted a five-page letter in which she stated that she opposed all vaccinations.  R.M. explained that she and O.M. were raised as Christians and “strive to reflect God’s will to live the most basic life in the simplest way possible” and that the sincerity of their beliefs “is demonstrated by our practice of a wide range of lifestyle choices that reflect consistency in our commitment toward God’s intention of our life together.”

R.M.’s letter contained several excerpts from the “Catechism of the Catholic Church” and the Bible and stated that there are “many themes in the Bible prohibiting the mixing of things, as it corrupts the purity of that thing.”  Specifically, R.M. explained that “[t]o attempt to ward off illness by contaminating our blood with vaccines would be a contradiction of my faith.  Vaccinations are thus in direct conflict with my interpretation of Catholic tenets and practices.”  R.M. further noted:

Parenthetically, I also learned that most vaccines are derived from the original cell lines of aborted human fetuses, and that all drug companies engage in fetal and embryonic research for many sorts of drug products.  Learning this information not only has reinforced my decision, but it has also made me vigilant with respect to the representations of any of these companies, and their purported dedication to life and health.

Because such work is a direct violation of the teachings of God, engaging in such practices and attempting to support and benefit from them would be committing acts against my religious beliefs.  I cannot in good conscience use products that are connected in any way to companies who misuse and knowingly support the use of aborted life.  I have been taught to be opposed to such actions my whole Christian life.  I will not compromise those beliefs at the request of Government.  Exodus proscribes, “Do not slay the innocent and the righteous” (Exodus Chapter 23: Verse 7).

By letters dated February 28 and March 1, 2011, respondents Tracey and Lamorgese noted that petitioners’ 2008 request had been denied, asked whether their “views have substantively changed from their past expressions,” and requested that they describe any such changes.

By letters to both Tracey and Lamorgese dated March 4, 2011, R.M. explained that her “views have not actually changed, but how I express them has [changed] significantly.”  According to R.M., the “main difference between how I express them now, in our present request for exemption, and our previous request, is in my ability to clearly define and explain them to others.  My beliefs have not changed.  They have always been theological in origin.”

By letters dated March 16 and 17, 2011, respondents Lamorgese and Tracey informed petitioners that, based on the information provided in R.M’s March 4, 2011 letters “indicating that your beliefs have not changed from your first exemption request in 2008,” there was “no religious basis on which to grant an exception from immunization.”

This appeal ensued.  Petitioners’ request for interim relief was denied on May 6, 2011.

Petitioners contend, interalia, that they have a sincere religious belief against immunizing their children and that respondents’ denial of their 2011 exemption request was arbitrary and capricious.  Petitioners assert that respondents did not fairly and properly consider their 2011 exemption request and improperly relied upon statements made by petitioners with respect to their 2008 request in making their determinations with respect to the 2011 request.

Respondents contend that their determinations were not arbitrary and capricious and that their consideration of petitioners’ request was in all respects proper.

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 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 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 S.B., 48 id. 332, Decision No. 15,875; Appeal of L.S., 48 id. 227, Decision No. 15,845).

In this case, respondents maintain that, because petitioners “confirmed that their religious beliefs remained unchanged since the denial of their last application [in 2008], no further information was necessary, and their requests were denied.”  However, as noted above, while school officials are not required to simply accept a statement of religious belief without some explanation, they should not simply reject a statement without further examination.  Accordingly, respondents have an obligation to fully consider each such request (seee.g.Appeal of I.M. and G.M., 50 Ed Dept Rep, Decision No. 16,164).

In this case, the record indicates that respondents did not consider petitioners’ 2011 request.  Although respondents urge, and petitioners admit, that the substance of petitioners’ religious views has not changed since their 2008 request, the record reflects that petitioners’ expression of such views has changed since that time.  For example, while petitioners submitted a one-page letter with their 2008 request, their 2011 request comprises nearly five pages and contains several Biblical and other passages that were not included in the 2008 submission.  Moreover, nearly three years have passed since respondent denied petitioners’ 2008 request.  It is possible that, during such time, the expression of petitioners’ fundamental beliefs has grown and evolved such that the 2011 request could materially differ from the 2008 request.  Because a review of the record indicates that the two requests are not, in fact, identical, I find no basis for respondents’ conclusion that full consideration of the 2008 request obviated the need for consideration of the 2011 request.

Rather than attempt to review a determination which did not consider the information submitted by petitioners as part of their 2011 request, I will remand this matter to respondents for full consideration of and a determination regarding petitioners’ 2011 request.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this order, respondents make a determination as to whether petitioners’ children are entitled to exemptions from the immunization requirements of PHL §2164 for the 2011-2012 school year and that, in making such determination, respondents shall consider all relevant information submitted by petitioners.

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