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Decision No. 16,414

Appeal of O.M. and R.M., on behalf of their children X.J.M. and S.B.M., from actions of the Board of Education of the East Hampton Union Free School District and Assistant Superintendent Charles Soriano, regarding immunization.

Decision No. 16,414

(September 18, 2012)

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

Kevin A. Seaman, Esq., counsel for respondents

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the East Hampton Union Free School District (“board”) and Assistant Superintendent Charles Soriano (“assistant superintendent”)(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 dismissed.

The full factual background of this appeal may be found in Appeal of O.M. and R.M. (51 Ed Dept Rep, Decision No. 16,267) and will not be repeated in its entirety here.  However, a brief summary is useful for purposes of this appeal.  An exemption for X.J.M. had been granted in 2005.  In 2008, petitioners requested an exemption for S.B.M., who was to enter kindergarten.  That request was denied by the elementary school principal and petitioners decided to send both children to a neighboring district.[1]  On January 29, 2011, petitioners again requested an exemption for their children (“2011 request”).  The elementary and middle school principals at the time inquired whether petitioners’ “views ha[d] substantially changed from their past expressions.”  Petitioner R.M. replied that her “views had not actually changed, but how I express them has [changed] significantly.”  Based on this response, the principals, in separate letters, denied the request and petitioners appealed.

In Appeal of O.M. and R.M., I remanded the matter to respondents[2] to make a determination within 30 days and “consider all relevant information submitted by petitioners” because the record indicated that respondents relied on information petitioners had submitted when they sought the exemption in 2008, but failed to consider the information petitioners submitted in 2011. 

On August 16, 2011, the assistant superintendent submitted for my consideration an “Answering Affidavit” (“affidavit”).   By letter dated August 22, 2011, my Office of Counsel informed the assistant superintendent that I did not retain jurisdiction in the matter because the decision had been issued, and that the district was obligated to render a determination.  By letter dated August 25, 2011, the assistant superintendent advised petitioners’ counsel that the affidavit served as the determination denying petitioners’ request for an exemption from immunization for their children.  Respondents’ counsel confirmed this position by letter to petitioners’ counsel dated September 6, 2011. 

In the interim, by letter dated August 31, 2011, petitioners’ counsel requested that I intervene and order the district to admit the children because the district had failed to comply with my remand order.  On September 7, 2011, my Office of Counsel informed petitioners’ counsel that their recourse to challenge the district’s determination was an appeal pursuant to Education Law §310.  This appeal ensued.  Petitioners’ request for interim relief was granted on September 23, 2011.

Petitioners contend that respondents failed to adhere to my directive in Appeal of O.M. and R.M. because they did not consider all relevant information in making a determination, and did not render a determination within 30 days.  They assert that respondents’ determination is arbitrary and capricious because respondents failed to apply the proper standard of review.  Petitioners assert that they possess genuine and sincere religious beliefs and seek a determination granting an exemption from the requirements of PHL §2164 for their children.

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.  Respondents assert that the district’s representatives fully considered petitioners’ request and the determination to deny the request for an exemption from immunization was not arbitrary and was in compliance with prior Commissioner’s decisions.

I will first address several procedural issues.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

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).

By letter dated November 26, 2011, petitioners sought permission to submit an expanded reply and an exhibit containing information obtained from a Freedom of Information Law (“FOIL”) request to respondents on October 21, 2011.  They assert that respondents did not provide the requested information in a timely manner, and, therefore, such information could not be included in their reply even though the information is necessary to reply to respondents’ answer.  Respondents object to this submission and assert that there is no provision in the Commissioner’s regulations for an expanded reply.  They also assert that the district responded to the FOIL request appropriately and in a timely manner.

I decline to accept petitioners’ submission.  First, the record indicates that petitioners received the answer no later than October 12, 2011, and did not request information from the district until October 21, 2011.  Second, although the district made the requested information available to petitioners’ counsel on November 4, 2011, after the due date for the reply, this was only ten business days after the date of the request.[3]  In addition, petitioners requested “all applications for religious exemption from immunization and subsequent determinations [] since the employment of Charles Soriano by the school district.”  However, petitioners fail to demonstrate how or why this information could not have been obtained in time to include with the petition or the reply, especially given the unique and prolonged procedural history of petitioners’ appeals.  Accordingly, I will not consider petitioners’ expanded reply.

Petitioners contend that respondents’ determination is untimely because the assistant superintendent attached the affidavit to an email to petitioners’ attorney on August 26, 2011, thirty-five days after my order in Appeal of O.M. and R.M.  Although petitioners do not specify the date their counsel received the affidavit, they admit that the assistant superintendent sent a copy of it to their counsel before receiving the August 22, 2011 letter from my Office of Counsel.  Accordingly, I find that the affidavit was not untimely.  While I recognize that the affidavit was not “repurposed” as the respondents’ determination until August 25, 2011, I find in this case that the delay was deminimus, especially since petitioners already had a copy, were not delayed in commencing an appeal and have not otherwise alleged or established that they have been prejudiced thereby.

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 contend that, in accordance with guidance provided by the State Education Department (“SED”) and the board’s Policy 7511, the building principals were required to render a determination in response to the remand, and that it was improper for the assistant superintendent, rather than the principals of the elementary and middle schools, to issue the final determination.  I find this argument unavailing.

Pursuant to SED guidance issued in 2006, “[t]he building principal will be responsible for the review of each request for a religious exemption to immunization.  If, after review of the parental/guardian statement, questions remain about the existence of a sincerely held religious belief, Department of Health regulation [10 NYCRR §66-1.3(d)] permits the principal to request supporting documents” (emphasis in original).  Section 66-1.3(d) of 10 NYCRR provides that:

A principal or person in charge of a school shall not permit a child to be admitted to such school unless a person in parental relation to the child has furnished the school with one of the following:

...

(d) a written and signed statement from the parent, parents or guardian of such child, stating that the parent, parents or guardian objects to their child's immunization due to sincere and genuine religious beliefs which prohibit the immunization of their child in which case the principal or person in charge of the school may require supporting documents.

The board’s policy provides that when a student’s parents hold genuine and sincere religious beliefs which are contrary to the requirement for immunization, “the Building Principal will make a case-by-case determination whether a parent/guardian is entitled to invoke this religious exemption ....”

The record reveals that on January 29, 2011, petitioner R.M. submitted the 2011 request for 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.  The record also indicates that the elementary and middle school principals requested additional information from petitioners, and then determined individually, albeit using identical language, that, “[b]ased on the information that you have provided in your letter of March 4, 2011 indicating that your beliefs have not changed from your first exemption request, I find no religious basis on which to grant an exemption from immunization.”  As noted above, at this juncture, the first appeal ensued.

At the time of the remand, neither of those principals still held those positions.  Thus, it was not unreasonable for the assistant superintendent to render a determination in August 2011 since the building principals had already denied the request and those individuals were no longer so employed.  As noted above, PHL §2164 and the applicable regulations state that the principal or person in charge of the school must make the determination whether to grant an exemption.  I note that, in a circumstance involving more than one child and different schools, the Commissioner found that a superintendent’s decision to personally consider an exemption request may be a prudent use of resources (seeAppeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875).  Accordingly, the fact that the assistant superintendent did not “recommence” a review of petitioner R.M.’s letter at the building principal level does not compel a finding that respondents violated their policy or the remand order, or otherwise acted arbitrarily or capriciously.

While they are not required to do so, the record does not indicate whether the principals or assistant superintendent requested an interview, meeting or any other supporting documents from petitioners to further explain or clarify their religious beliefs or to assess their demeanor and forthrightness.  Such meetings occurred in the two cases cited by the assistant superintendent in his affidavit (Appeal of C.S., 50 Ed Dept Rep, Decision No. 16,163 and Appeal of B.R. and M.R., 50 id., Decision No. 16,250).  Petitioners complain that their “numerous attempts at communication made personally and through their attorney [were] ignored throughout the process, from January 2011 and it continues up to the filing of this second appeal.”  However, other than petitioners’ assertions, the record submitted by petitioners contains no evidence of such attempts or requests for a meeting or interview, and contains only the 2011 request and one other communication from petitioner R.M.:  a letter dated March 25, 2011 to the elementary school principal.[4]  That letter stated that the 2011 request was the third such request, asked questions and requested the district’s procedures for addressing religious exemptions, but contains nothing further about her views or beliefs or the sincerity of her beliefs.

I acknowledge petitioners’ reference to Appeal of De Leon (39 Ed Dept Rep 580, Decision No. 14,318), in which the matter was remanded to develop a more complete record because respondent had denied petitioner’s request for an exemption based on her written statement, but had not met with her to further assess her credibility.  However, given the unique procedural history of this case, I find that the interests of justice would not be served by remanding this case again.  The assistant superintendent possessed petitioner R.M.’s written statement (the 2011 request) when making his determination, and the affidavit indicates that he did consider it in reaching his determination in compliance with my remand order “to consider all relevant information submitted by petitioners” (Appeal of O.M. and R.M., 51 Ed Dept Rep, Decision No. 16,267).[5] 

I also find that it was not unreasonable for the assistant superintendent, or the principals in the first instance, to review petitioners’ 2008 request for exemptions in conjunction with the 2011 request in reaching a determination.  As previous Commissioner’s decisions have held, when presented with a request for an exemption from immunization, it is not unreasonable for school officials to review information regarding previous requests for other family members or siblings (seee.g.Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; Appeal of L.S., 50 id., Decision No. 16,180; Appeal of A.C., 50 id., Decision No. 16,175).  Similarly, petitioners’ reliance on previous exemptions granted by the district (in 2005), a day care, and a neighboring district, is not dispositive.

In the 2011 request, petitioner R.M. states, among other things, 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;

[They honor their] bodies as God’s temple ... includ[ing] adhering to a simple, unadulterated diet, based on the natural elements that the Lord provided on this earth for His children;

Together, we have taken our years of religious practice into a serious account of formulating our daily lifestyle and our approach to everyday decision making;

[Neglecting the responsibility as X.J.M. and S.B.M.’s mother to be their moral guardian] would constitute a sin;

I must follow my religious faith-based instincts and Christian-based beliefs; it is not a choice to do otherwise;

This is not a basis for me to reject science or to embrace a holistic lifestyle. I don’t belong in either category;

We decided as parents that we would not engage in any medicinal interventions that are clear violations of our religious teachings;

[The Bible prohibits] the mixing of things, as it corrupts the purity of that thing;

[T]he idea of holy ... is purity and transcendence.

[Not all Christians and those of other religious backgrounds] make a connection from this precept to vaccination - which entails the injection of products derived from foreign cells and genetic material into one’s bloodstream.

Petitioner R.M. states that she reviewed Catholic doctrines and the Bible, and concluded that:

[V]accines corrupt our bloodstreams and interfere with the holiest, most sacred part of our physical body that God created;

[Leviticus] does not encourage man to introduce biological poison and foreign genetic materials such as those in vaccines as an avenue toward healing.  On the contrary, such elements defile the blood and are an intrusion to the body as a holy, spiritual place;

Scripture has convinced me that vaccines change the very structure of the purity of one’s blood and the sustenance of man’s body as his holy temple;

To 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 tenet and practices.  I therefore oppose all vaccinations.

Petitioner R.M. also added the following:

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 by 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.

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.

In reviewing this request, the assistant superintendent determined that:

[A]fter reading all of the materials pertaining to the 2008 and 2011 matters, the District concludes that although there may be aspects of the petitioners’ belief systems grounded in personal religious intentions it is determined that the totality of their explanations demonstrate that they personally hold philosophic, medical, ethical and homeopathic beliefs that do not rise to the level sufficient to override the public policy seeking to reduce disease by way of immunizations.

The assistant superintendent also stated:

Again, in balancing those competing interests [request for exemption and public policy] and providing for the utmost respect to granting bonafide petitions seeking an exclusion from immunizations it has been determined by the District that the appeal under review does not warrant granting of the exemption based on “genuine and sincere personal religious beliefs” possessed by the Petitioners/parents (emphasis in original).

As stated above, 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.  Accordingly, to the extent the assistant superintendent weighed or balanced public policy considerations against petitioners’ statements, that analysis is inappropriate and I admonish respondents to apply the proper analysis in the future.

Nevertheless, based on the record before me, I find that petitioners have failed to establish that respondents’ determination was arbitrary or capricious.  In reviewing the 2011 request, there can be no doubt that petitioners sincerely object to immunizations, but the crux of the issue is whether the reasons for the 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).

Petitioners’ opposition to immunization is based in part on the fact 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,” that vaccination “entails the injection of products derived from foreign cells and genetic material into one’s bloodstream” and that they will not “use products that are connected in any way to companies who misuse and knowingly support the use of aborted life.”  They also state that they had “decided as parents that we would not engage in any medicinal interventions that are clear violations of our religious teachings.”  While petitioners did not express specific opposition to abortion as part of their religious beliefs, they nonetheless fail to specify or provide any evidence to indicate which, if any, vaccines actually are derived from the cell lines of aborted human fetuses, contain such tissue, or are derived from foreign cells and genetic material.  They fail to differentiate among medicinal interventions and seek an exemption from all vaccines, without regard to whether they derive from fetal tissue.  This undercuts their argument that their opposition to immunization is religious in nature (seeAppeal of Y.R. and C.R., 50 id., Decision No. 16,165; Appeal of C.S., 50 id., Decision No. 16,163; cf.Appeal of B.O-G., 51 id., Decision No. 16,294).  Although petitioners’ request includes statements that are religious in nature, the statements, among others, that their “bodies [are] God’s temple,” the Bible prohibits “the mixing of things,” “vaccines corrupt our bloodstreams and interfere with the holiest, most sacred part of our physical body that God created,” “vaccines change the very structure of the purity of one’s blood and the sustenance of man’s body as his holy temple,” do not, in and of themselves, establish a sincerely held religious objection to immunization (seeAppeal of L.S., 50 Ed Dept Rep, Decision No. 16,180;  Appeal of I.M. and G.M., 50 id., Decision No. 16,164;  Appeal of S.B., 48 id. 332, Decision No. 15,875; Appeal of R.P. and R.P., 47 id. 124, Decision No. 15,648).

Based on the record before me, I find that petitioners did not meet their burden of establishing 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.  However, I remind respondents of their obligation to evaluate all exemption requests in light of this decision and the requirements of PHL §2164(9).

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioners assert that they enrolled their children in the Springs Union Free School District, not a nonpublic school as stated in Appeal of O.M. and R.M.

[2] Respondents in that appeal, in addition to the board of education, were the then-superintendent and elementary and middle school principals, who are no longer employed by the district.

[3] To the extent that petitioners complain about the FOIL process, as respondents correctly note, I have no jurisdiction to address FOIL allegations.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).

[4] In their memorandum of law, petitioners’ counsel references a hand-delivered letter to the assistant superintendent seeking review in April 2011, and a meeting between the assistant superintendent and petitioners’ counsel in April 2011.  The letter is not a part of the record before me and the events of the meeting were not part of the pleadings, so I will not consider them (see 8 NYCRR §275.3[a]).

[5] Petitioners submit five references with their petition, but the record does not indicate that these references were previously submitted to respondents for consideration.  In any event, I have reviewed them and do not find them dispositive.