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Decision No. 16,425

Appeal of D.H., on behalf of her son C.T., from actions of the New York City Department of Education and Julia Sykes, Health Service Coordinator, regarding immunization.

Decision No. 16,425

(October 5, 2012)

Robinson Iglesias, Esq., counsel for petitioner

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) and Health Service Coordinator Julia Sykes (“coordinator”) (collectively “respondents”), that her son, C.T., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On April 4, 2011, petitioner began registering her son for kindergarten for the 2011-2012 school at respondent’s P.S. 172.  Petitioner included a letter “exercising our rights” to receive a religious exemption from vaccination.  She stated that “[t]he vaccines we oppose are the MMR and Chickenpox and any other that may be required in the future which are derived from aborted fetal tissue.”  The letter included several quotations from Vatican publications and the Catechism of the Catholic Church.

The coordinator avers that she received petitioner’s letter on October 17, 2011.  By memorandum dated November 1, 2011, the coordinator denied petitioner’s request, stating that “the documentation you submitted is inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  As you know, [C.] has all of the required vaccines except for ‘4th DPT [sic], varicella and MMR.’”  The memorandum provided information about how to appeal the determination, which petitioner did by requesting an interview with the Health Liaison (“liaison”) for the Children First Network (“CFN”).

Petitioner met with the liaison and the principal on November 21, 2011.  In response to the liaison’s questions, petitioner stated that she was a practicing Catholic “and the church is against abortion.  I practice what I preach” and that she “was not against all immunizations.  I am against the ones derived from aborted fetuses.”  She also stated that she had “converted to Catholicism for the past two years.”  Petitioner provided a second letter dated November 2011 in which she reiterated that she opposes the MMR and chickenpox vaccines and “any other that may be required in the future which are derived from aborted fetal tissue.”  She stated further that “[a]s a Christian Catholic and pro lifer, I reject every form of voluntary abortion of human fetuses.  We follow the Church’s teaching and I will not be forced to act against my conscience.”  She admitted that her previous letter “did not contain my wording as it was taken from a message from the Vatican as well as Church Doctrine ...  My beliefs remain genuine and sincere.”  She also noted that her request for an exemption from immunization was accepted when C.T. attended pre-kindergarten the previous year.  The record does not indicate whether this letter was submitted before or after the interview.

By memorandum dated December 21, 2011, the coordinator denied petitioner’s appeal, stating 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 petitioner that she could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that, during the appeal process, her son would not be permitted to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 20, 2012.

On the same date, but after petitioner’s request for interim relief had been denied, my Office of Counsel received a “Supplemental Affirmation” in which petitioner stated:

[w]e inadvertently omitted an explanation as to why [C.T.] has received three DTP when he needs four ... Most DTP vaccines are derived from aborted fetal tissue.  Petition [sic] has consulted with her doctor to find an alternative DTP vaccine for her son [C.T.].  As such, Petitioner is not opposed to getting her son vaccinated with DTP, so long as she is able to vaccinate him with the alternative – which is not derived from aborted fetal tissue. 

Petitioner also attached the “Notice of Exclusion from School Due to Incomplete Immunization” (“Notice”), which indicated that C.T. was missing only his MMR.  The Notice is dated January 13, 2012, and petitioner states that she did not receive it until after she served the appeal on January 9, 2012.  Respondents opposed petitioner’s submission.  On January 26, 2012, a corrected Notice was sent to petitioner, informing her that C.T. required the MMR vaccine and the fourth DTP vaccine.  By letter dated January 30, 2012, my Office of Counsel notified petitioner that both parties’ submissions had been considered and that no stay order would be issued. 

Petitioner contends that the school did not make a good faith attempt to investigate whether her beliefs were genuine and sincere and erroneously relied on the fact that C.T. had obtained other vaccines.  Petitioner asserts that she is a devout Catholic and “pro lifer,” that she belongs to a Catholic faith organization – Helpers of God’s Precious Infants, and that she has genuine and sincere religious beliefs that are contrary to immunization. She seeks a determination granting an exemption from the requirements of PHL §2164 for her son.  Respondent asserts that the determination was not arbitrary or capricious because petitioner’s objections to immunizations are not based on genuinely and sincerely held religious beliefs.

I will first address a procedural issue.  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).  As noted above, because I considered petitioner’s supplemental affirmation and respondents’ opposition thereto when denying interim relief, I will accept them as part of the record.

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 petitioner’s 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 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 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).

Regarding the varicella vaccine, petitioner asserts that, because C.T. contracted chickenpox, the varicella vaccine is no longer required.  In their answer and memorandum of law, respondents admit that petitioner submitted documentation from C.T.’s physician that he had contracted chickenpox in December 2011 and is no longer required to receive the varicella vaccine.  However, such documentation is not in the record.  In addition, the coordinator states in her affidavit that “[t]here is nothing in the records maintained by the Office of Student Health that indicates that the Child has had chickenpox or received the Varicella vaccine.”  Nonetheless, based on respondents’ admission, it appears that the matter of the varicella vaccine is no longer at issue.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

However, the record indicates that C.T. still lacks the MMR and 4th DTP vaccines.  In the petition, petitioner states that she “objects to [the] MMR vaccine because it has been cultivated from aborted fetal [sic].”  She “has permitted her son to receive other vaccines because she does not object broadly to all vaccine [sic], rather petitioner specifically limits her objections to those vaccines which have been derived from aborted fetal tissue.”  In her affidavit attached to the petition, petitioner states, among other things, that:

I was raised and continue to be a devout Catholic.

I am not oppose [sic] to every vaccine, specifically I am oppose [sic] to MMR and Chickenpox vaccines because I researched and learned through the Helper’s of God Precious Infants that these particular vaccines were derived from abortions.

As a Christian Catholic and pro-lifer, I reject every form of voluntary abortion.

I belief [sic] that an abortion is the killing and the bible teaches us not to kill.

She also stated in her supplemental affirmation that: 

[m]ost DTP vaccines are derived from aborted fetal tissue.  Petition [sic] has consulted with her doctor to find an alternative DTP vaccine for her son [C.T.].  As such, Petitioner is not opposed to getting her son vaccinated with DTP, so long as she is able to vaccinate him with the alternative – which is not derived from fetal tissue.

Petitioner’s objection to certain immunizations is based on her opposition to abortion, which is religious in nature and is based upon her interpretation of the Bible and Catholic teachings and doctrines (seeAppeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  However, while petitioner limits her exemption request to those vaccinations that contain material derived from aborted fetal tissue, she has failed to submit any evidence - other than her conclusory assertions - to support her claim of a linkage between the use of cells derived from aborted human fetal tissues and the MMR and DTP vaccines to which she objects (cf.Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).[1]   Additionally, as respondent argues in its verified answer, the record contains no evidence that C.T. received a fourth DTP vaccine despite petitioner’s acknowledgement that there are alternatives to the DTP that are “not derived from aborted fetal tissue” and that she has “consulted with her doctor” to find such an alternative DTP vaccine for C.T.  Petitioner has submitted no reply or other evidence to explain whether C.T. has received such alternative DTP vaccine and, if not, why such alternative vaccine has not been administered.

Accordingly, based on the record before me, I am constrained to find that petitioner has failed to establish that respondent’s determination was arbitrary or capricious.  However, I note that petitioner retains the right to reapply for a religious exemption and that respondent must evaluate any such application – including any evidence petitioner may submit regarding a linkage between the MMR vaccine and aborted fetal tissue – in light of this decision and the requirements of PHL §2164(9).

THE APPEAL IS DISMISSED.

END OF FILE.

[1] In Appeal of B.O-G., respondents declined to answer the petition.  Therefore, petitioner’s evidence submitted in support of her claim of a linkage between the use of cells derived from aborted fetal tissue and particular vaccines was not rebutted by respondent and the factual allegations set forth in the petition were deemed to be true in accordance with §275.11(a) of the Commissioner’s regulations.