Appeal of K.N.N.M. and E.A.Y., on behalf of their son O-S.E.M., from action of the New York City Department of Education and Julia Sykes, Health Service Coordinator, regarding immunization.

Decision No. 16,410

(September 18, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Charles Carey, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“DOE”) and Health Service Coordinator Julia Sykes (“coordinator”) (collectively “respondents”) that their son, O-S.E.M., is not entitled to an exemption from the immunization requirements of Public Health Law §2164.  The appeal must be dismissed.

On or about September 12, 2011, O-S.E.M. was enrolled in kindergarten at respondent’s P.S. 93.  Upon enrollment, petitioner E.A.Y. provided a signed affidavit, dated September 13, 2011 (“the September affidavit”), to the school principal, explaining that her son was exempt from vaccinations and immunizations due to her religious beliefs, and that she was “withhold[ing] my consent and ... [my son] is exempted from any and all vaccinations on the grounds that such is contrary to my beliefs, religious and otherwise.”  She stated further:

All vaccine/inoculants are harmful to the human physiology and do not protect anyone from disease.  Any school or medical authority who tries to coerce or force vaccinations/inoculations upon my offspring or anyone else, is in direct and flagrant violation of the Laws of the United States, and all parties responsible will be made subject to prosecution to the fullest extent of these laws.

The affidavit then cited the Fourth and Fourteenth Amendments to the United States Constitution.  Petitioner E.A.Y.’s statement continued:

I give no consent for my child to be immunized or vaccinated in any manner.  The voluntary consent of human subject [sic] is absolutely essential.  The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, direct [sic] or engages in the experiment.  It is a personal duty and responsibility which may not be delegated to another with impunity.

By form letters dated November 18 and December 6, 2011,[1] the principal notified petitioners that their son had not met the necessary immunization requirements and that he required shots for DPT, MMR, and Varicella.  The notice stated that “immunization is required for all public school children.  It is mandated by law and required that all immunization is up to date to remain in school.  Children will be excluded from school if they do not meet these requirements” (emphasis in original.)

Petitioners state that in response to the notices, they twice hand-delivered the previously submitted affidavit to the principal.  According to petitioners, the principal stated that the affidavit was acceptable to her and that she would forward it to the Board of Education.

The coordinator avers that she received the forwarded affidavit on November 28, 2011.  By memorandum dated December 12, 2011, the coordinator notified petitioners that: “[i]t has been determined that there is insufficient documentation to determine whether a religious exemption from immunization is warranted and that additional documentation in support of your request must be submitted.”  The memorandum noted that the additional documentation must address the following elements:

The memorandum also stated:

[A]ffidavits and/or letters from the internet, or a letter from you, a lawyer, a member of the clergy or any other individual simply indicating that a parent has such a religious belief, without any further explanation, is inadequate to support the granting of the exemption.  Please note that the Public Health Law does not authorize the granting of exemptions based upon personal, moral, secular, scientific or philosophical beliefs (emphasis in original).

The memorandum 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 CFN [Children First Network] Health Liaison within ten school days of receipt of [a denial] letter.  During this appeal process, your child will be permitted to remain in school.”

By letter dated December 28, 2011, petitioner E.A.Y. responded, stating:

First I am an Ordained Minister under the Universal Life church [].[2] I am not “requesting” a religious exemption for my child, I am declaring and proclaiming my child exempt from immunization, and you do not have the authority to grant or deny exemptions from immunization.  There are only two choices once a declaration and proclamation is made, it is either honored, or discriminated against.  Second the principles that guide my decision are religious, personal, moral, and scientific, all of which are one and the same.  My religious beliefs are my personal and moral beliefs and foundation, and they are supported with scientific evidence.  Any law that prohibits a decision based on personal, moral, scientific principals [sic] is contrary to logic, reason, and common sense, and such a law discriminates against the intelligent.

The religious, personal, moral and scientific principals that guide my decision are:

1. Vaccinations and Immunizations are dangerous for my child. They are a form of genocide, and population control.
2. Vaccinations and Immunizations do not protect against disease and illness.
3. My religious, moral, personal and scientific beliefs will not allow me to put my child in harms [sic] way.
4. We are all made perfect in the eyes of God and to vaccinate or immunize my Child, would be to question the very power of God.

Lastly, I am opposed to all vaccination and immunization for my child; none are safe.

By memorandum dated January 9, 2012, the coordinator denied petitioners’ request for a religious exemption, determining that the documentation they had submitted was “inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The memorandum also 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.  Petitioners appealed the determination and met with the CFN Health liaison (“liaison”) on March 1, 2012.

At the interview with the liaison and another unnamed individual, petitioners provided additional information in response to six questions on the interview form:

Petitioners also provided a written statement in which they stated that they believe in the teachings and principles of the Bible and cited four Bible verses:

As stated in the Bible in Gen 1:26 we are created in the image of God.  We are perfect beings with the ability to make mistakes.  Modern Science will agree that human [sic] body is a miraculous machine of self healing.  Reve 22:2 says that the leaves of the trees are for healing, not the recombinant animal DNA in vaccines.  Jer 30:13 says you have no healing medicines and Jer 33:6 says God will bring health and healing.  For these reasons we oppose all Vaccinations and Immunizations for our child.

By memorandum dated March 21, 2012, the coordinator denied petitioners’ appeal.  She determined that “[t]he documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The memorandum also informed petitioners that they could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that during the appeal process, their son would not be permitted to remain in school.  This appeal ensued.  Petitioners’ request for interim relief was denied on May 2, 2012.

Petitioners contend that the coordinator’s determination is arbitrary and capricious because the coordinator never interviewed them, whereas the principal and the liaison found their beliefs genuine and accepted their documentation.  They contend further that the proper procedure was not properly followed.  They assert that the determination was arbitrary and capricious because the explanation of the denial was vague and disrespectful to them and their faith, and because the liaison did not complete and sign pages 3 and 4 of the Request for Religious Exemption Form (“Form”).  Petitioners seek a religious exemption for O-S.E.M. pursuant to PHL §2164.

Respondents assert that the determination was not arbitrary or capricious because petitioners’ objections to immunizations are not based on genuinely and sincerely held religious beliefs, but rather are based primarily on moral objections to, and the potential adverse medical consequences of, immunization.

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 the coordinator’s determination is arbitrary and capricious because the principal and liaison found their beliefs genuine, whereas the coordinator never interviewed them.  They also assert that respondents failed to follow the proper procedures because the liaison did not complete and sign two pages of the Form and the reasons for the denial are too vague to provide sufficient explanation of the reasons for denying their request for a religious exemption.  I disagree.

Respondents do not provide an affidavit from the principal or liaison, and deny knowledge or information sufficient to form a belief as to the truth of petitioners’ allegations that those individuals determined that petitioners’ “documents definitely show [they] have genuine religious reasons for exempting [their] child ....”  Respondents assert, however, that pursuant to the Chancellor’s Regulations, it is the coordinator’s responsibility to review the record and make a determination, which she did, based on the entirety of the record as a whole (see Chancellor’s Regulation A-701[III][A][4][b]).

In her affidavit, the coordinator avers that after receiving the September affidavit, she requested additional information from petitioners because the affidavit failed to explain petitioners’ religious beliefs and contained only a single reference to religion, that “all vaccinations ... [are] contrary to my beliefs, religious and otherwise.”  She avers further that petitioner E.A.Y.’s December 28, 2011 letter in response to her request failed to adequately explain petitioners’ religious beliefs, but rather, emphasized that vaccinations are unsafe and dangerous for O-E.S.M.

She states that prior to making her determination on January 9, 2012, she considered all petitioners’ submissions.  She also considered that petitioner E.A.Y.’s certificate of ordination from the Universal Life Church was dated August 25, 2011, less than two weeks before the commencement of the 2011-2012 school year on September 7, 2011, that the certificate failed to provide any information about the religious views of the church or its view on vaccines, and that petitioner failed to describe her personal religious beliefs beyond a generalized statement that the human body was made perfect by God.  She also avers that her review included petitioners’ son’s immunization history.  Although petitioners stated that they objected to all vaccines, they failed to acknowledge that their son had in fact received three vaccines each for HepB, DTap, Hib, Polio and Pneumococcus, and was missing only the fourth DPT vaccine and vaccines for varicella and measles, mumps and rubella (“MMR”)[3] (see Chancellor’s Regulation A-701[III][A]). At that point, based on her review of the record as a whole and her professional experience, the coordinator determined on January 9, 2012 that petitioners’ documentation was inadequate to warrant an exemption and notified them of their right to appeal.

The coordinator’s affidavit indicates that before reaching her final determination on March 21, 2012, she considered petitioners’ answers and submissions at the March 1, 2012 interview.  She notes that petitioners referred to themselves in one submission for the first time as “Min.” and “Rev. Min.”  In addition, petitioners stated for the first time that their religious principles were based upon “the teachings and principles of the Bible,” and referenced Bible citations.  The coordinator avers that she reviewed these documents and determined that petitioners had again failed to “provide sufficient documentation or information to substantiate a finding that Petitioners held a genuine and sincere religious belief contrary to the required immunizations.”[4] 

Although petitioners claim that respondents provided “no specific reason” for the denial of their exemption request, the coordinator’s three memoranda (December 12, 2011, January 9, 2012 and March 21, 2012) taken together notified petitioners of the deficiencies of their submissions and described what further information they needed to provide to establish that their opposition to immunization stems from sincerely held religious beliefs.  I also note that prior Commissioner’s decisions have recognized that respondents’ use of form letters is not perse unreasonable, and that 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 (Appeal of L.S., 50 Ed Dept Rep, Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).  While I note that the coordinator’s January 9, 2012 memorandum did not specifically request that petitioners explain their son’s immunization history, the record indicates that the principal had previously notified petitioners of the specific immunizations that were lacking.  The issue was also raised in respondent’s answering papers and petitioners have had sufficient opportunity to address it, which they failed to do (seeAppeal of L.S., 50 Ed Dept Rep, Decision No. 16,180).  Notably, petitioners did not submit a reply.  Accordingly, based on the record as a whole, I reject petitioners’ contention that the denial was too vague, or arbitrary or capricious.

As to petitioners’ contention regarding the liaison’s failure to complete two pages of the Form, there is no indication in the record that this Form was supplied or required by the district as part of its procedures.  In any event, the record demonstrates that respondent followed the procedure in the Chancellor’s Regulation and provided petitioners three opportunities to explain their religious beliefs and how their objections to immunizations are based on genuinely and sincerely held religious beliefs.  Therefore, I do not find that this alleged omission rendered the determination arbitrary or capricious.

Upon careful consideration of the entire record, I find that petitioners have failed to meet their burden of establishing that their opposition to immunization stems from sincerely held religious beliefs.  Petitioners state, among other things, that “[w]e are all made perfect in the eyes of God and to vaccinate or immunize my Child, would be to question the very power of God; we are created in the image of God.  God will bring health and healing.”  They also cite four verses from the Bible.  However, while these statements are religious in nature, general statements about God, the perfection of the immune system, and citations to biblical verses and passages, without more, are not sufficient to establish that petitioners hold genuine and sincere religious beliefs against immunization (seeAppeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; Appeal of I.M. and G.M., 50 id., Decision No. 16,164; Appeal of C.S., 50 id., Decision No. 16,163).

Moreover, petitioner E.A.Y. stated, among other things, that “[a]ll vaccine/inoculants are harmful to the human physiology and do not protect anyone from disease;” “[v]accinations and Immunizations are dangerous for my child.  They are a form of genocide, and population control;” “I am opposed to all vaccination and immunization for my child; none are safe.”  In addition, petitioner E.A.Y. referred to “the recombinant animal DNA in vaccines.”  These statements reflect medical and philosophical objections to immunization, rather than sincerely held religious beliefs.  Furthermore, petitioners fail to establish any nexus between their claimed religious objection to recombinant animal DNA and the practice of vaccination (seeAppeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  In addition, they seek exemption from all vaccinations (even though their son’s history reveals prior vaccinations), without distinguishing which among them might contain such recombinant animal DNA (seeAppeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).

As noted above, one factor considered by the coordinator was O-E.S.M.’s immunization history.  The fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of L.K., 45 Ed Dept Rep 10, Decision No. 15,243).  However, petitioners’ failure to acknowledge or explain their son’s immunization history is relevant to their credibility.  That history also contradicts petitioners’ statement that they object to all vaccines.

Respondents also note that although petitioners emphasize that they have been ordained, they claim not to follow an “organized” religion.  As stated above, it is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption (seeSherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 F Supp 81).  However, while the record includes evidence of petitioners’ ordinations, they fail to explain or establish how their ordinations are relevant to sincerely held religious beliefs in opposition to immunization.

The record reflects that although petitioners may sincerely object to immunizations, the crux of the issue is whether the reasons for their 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], appeal pending, 2d Cir., Index No. 11-3431).  The record as a whole evinces petitioners’ personal and philosophical beliefs regarding vaccines, rather than deeply held religious objections to immunizations.  Accordingly, 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 consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.