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Decision No. 16,491

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education regarding immunization.

Decision No. 16,491

(June 24, 2013)

John P. Margand, Esq., attorney for petitioner

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

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education(“respondent”) that her son (“the student”) is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be sustained in part and remanded.

By letter dated August 22, 2012, petitioner requested a religious exemption “for vaccines made with aborted fetal cells, where no other ethical alternatives [sic] vaccines are provided” – specifically, the MMR and varicella vaccinations. Petitioner stated that she is Catholic and that her family attends Mass, prays the Rosary daily and “read[s] the Bible, go [es] to Confession frequently and practice[s] religious fasting usually twice a week.” Petitioner cited several excerpts from the Catechism of the Catholic Church, including statements that human life is sacred from its inception, that abortion is “gravely contrary to the moral law,” and that the “Church attaches the canonical penalty of excommunication to this crime[abortion] against human life.”

Petitioner also stated that she and her husband are involved in “defending human life” by praying with a pro-life elderly group and by engaging in peaceful prayer in front of clinics and medical offices that provide abortions. Petitioner further explained that she had difficulties in becoming pregnant and then experienced complications during her pregnancy with the student, and that she believes that his birth was a miracle.

With respect to her opposition to the MMR and varicella vaccines, petitioner explained that, prior to the student’s birth, “while doing Rosary prayers in front of a doctor that practiced abortion, a little yellow pamphlet was given to my husband and me that listed vaccines made with aborted fetal cells, I was incredulous, and did much research to attest [sic] it.” Petitioner stated that she was “shocked” by this knowledge and attempted to access separate measles and mumps vaccines from a pharmaceutical company that does “not use aborted fetal cells,” but discovered that those vaccines were no longer available through that company. She also contacted a Japanese institute that offers “ethical versions” of those vaccines, but learned that the FDA does not permit those vaccines to be imported into the United States and was unable to bring her children to Japan to receive the vaccinations.

By memorandum dated September 10, 2012, the Health Service Coordinator (“coordinator”) in respondent’s Office of School Health (“OSH”) 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. [The student] has all of the required vaccines; except for ‘MMR & varicella vaccine’. “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 on September 20, 2012.In response to the liaison’s questions, petitioner explained her family’s religious practices, including her children’s nightly prayers for “the unborn babies, and to end abortion.” Petitioner stated that her request was based on her belief as a Catholic that:

... abortion is extrinsically evil and mortal sin. Life begins at conception, benefiting [sic] and exploiting aborted babies is ... a moral sin. In addition, the Catechism of the Catholic Church teaches that ... ‘Man has the right to act in conscience and in freedom so personally to make moral decisions....’ Sin is a personal act. Moreover, we have a responsibility for sins committed by others when we cooperated [sic] with them.

Petitioner also submitted a packet of documents (“the September 2012 documentation”) to the liaison, which included several letters describing her Catholic faith and practices and her pro-life beliefs from friends, from members of religious, charitable and pro-life groups and organizations of which petitioner is a member, and from pastors and other religious leaders. The September 2012documentation also included what petitioner described as “Roman Catholic Church documents in support [of] Right To Life and Religious Freedom,” her children’s immunization records, an undated chart from an unidentified source entitled “USA AND CANADA – ABORTED FETAL CELL LINE PRODUCTS AND ETHICAL ALTERNATIVES” (“chart”), descriptions of various vaccines from pharmaceutical companies, and email correspondence between petitioner and the Japanese institute detailing her attempts to access “ethical” versions of the MMR and varicella vaccines.

By memorandum dated October 2, 2012, the coordinator denied petitioner’s appeal, stating that the “documentation ... 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.”

This appeal ensued. Petitioner’s request for interim relief was granted on December 7, 2012.

Petitioner asserts that she is a devout Catholic and holds “Catholic ‘pro-life’ convictions.” She claims that she has genuine and sincere religious beliefs that are contrary to the MMR and varicella vaccines. Petitioner also claims that respondent failed to provide her with specific reasons for the denial of her request. She seeks a religious exemption from the MMR and varicella vaccines pursuant to PHL §2164.

Respondent contends that petitioner failed to provide sufficient information to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper.

Initially, I note that both parties submitted additional pleadings – including reply and sur-reply documents - in response to petitioner’s request for interim relief, which I accepted for consideration by letter dated December 3, 2012. 1

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 (see Farina 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., 48id. 348, Decision No. 15,882). 

To support her claim that respondent’s determination is arbitrary and capricious, petitioner argues that, based on the interview, the liaison found that she held “strong“ religious beliefs. 2  However, respondent correctly asserts that, pursuant to the Chancellor’s Regulations, it is OSH’s responsibility to review the record and make a determination based on the entirety of the record as a whole (Chancellor’s Regulation A-701[III][A][4][b]).Indeed, the OSH coordinator avers that, following petitioner’s interview, the liaison forwarded to the coordinator all of the documents submitted by petitioner, as well as petitioner’s responses to the liaison’s interview questions, and that such information formed the basis for the coordinator’s final determination.

Petitioner also asserts that respondent failed to provide sufficient explanation of the reasons for denying her request for a religious exemption. To support her claim, petitioner relies on guidance from the State Education Department (“Department”), which states that a decision to deny a request for a religious exemption must be 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.” As described above, both the September 10 and the October 2, 2012memoranda essentially stated that petitioner failed to demonstrate sincerely held religious beliefs which are contrary to immunization. The coordinator elaborates in her affidavit that petitioner’s documentation “contained no reference to the use of aborted human fetal tissue in vaccines” and that she “did not demonstrate that the vaccines in question were actually derived from aborted human fetal tissue [or] how her religious opposition to abortion specifically precluded her from vaccinating her children with the MMR and varicella vaccines;” however, no such rationale or explanation was made available to petitioner when respondent denied her request and her appeal (see e.g. Appeal of Y.R. and C.R., 50 Ed Dept Rep, Decision No. 16,165). Nevertheless, for purposes of this appeal, respondent have articulated a rationale for its determination, to which petitioner has had ample opportunity to respond and has indeed done so.

Accordingly, I will not sustain the appeal solely on this ground and I need not address the merits of petitioner’s argument on this issue as the appeal must be sustained in part and remanded for other reasons described below.

However, I admonish respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the Department’s guidance.

Respondent disputes that petitioner’s objection to the MMR and a varicella vaccine is based on sincere and genuine religious beliefs. To support its position, respondent submits evidence indicating that the Catholic Church does not support exemptions from vaccinations. Respondent highlights petitioner’s statement that “the [Catholic]Church, and some of its leaders, have deemed [vaccines derived from aborted human fetal tissues] to be immoral” and argues that petitioner is claiming that “specific bodies in the Catholic Church expressly prohibit her from obtaining vaccines for her children that she would otherwise obtain for them.” The record does not support respondent’s characterization of petitioner’s claims or the evidence. I agree with respondent that the record does not support a finding that the Catholic Church itself has taken the position that use of vaccines derived from aborted fetal tissue is per se forbidden or prohibited, and does indicate that the Church may take the position that parents who fail to vaccinate their children bear some responsibility for the resulting health risks to their children and to others.

However, the record also indicates that the Church strongly opposes abortion and that petitioner’s opposition to the MMR and varicella vaccines is based on her own genuine and sincere religious beliefs. As noted above, 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 (see Farina 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). 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 (see Appeal of D.H., 52 Ed Dept Rep, Decision No. 16,425; Appeal of B.O-G., 51 id., Decision No. 16,294). Although, as respondent notes, petitioner’s own interpretation of official Catholic teachings and doctrines may differ from those of the Catholic Church, the record indicates that her objection to certain immunizations is based on her opposition to abortion, which is religious in nature and genuine and sincerely held. To this extent, petitioner’s appeal must be sustained.

However, the appeal must be remanded with respect to the question of whether petitioner has submitted evidence sufficient to support her claim of a linkage between the use of cells derived from aborted human fetal tissue and the MMR and varicella vaccines to which she objects (see Appeal of C.O., 52 Ed Dept Rep, Decision No. 16,421). In its verified answer, respondent asserts that petitioner has failed to produce any documentation to support her claim that the MMR and varicella vaccines are made with aborted fetal tissue. I disagree. Respondent claims that petitioner’s August 2012 request contained only conclusory assertions about such a link and a citation to an “unrelated medical paper (whose contents she did not provide).” However, respondent acknowledges that, at the September 2012 interview with the liaison, petitioner provided approximately 50 pages of additional information -including the chart – regarding “aborted fetal cell line products and ethical alternatives.” In its verified answer, respondent states that “[n]one of the documents submitted [at the September 2012 interview with the liaison] or Petitioner’s responses during the interview contained any information regarding how the vaccines to which Petitioner objected contained aborted fetal tissue, or, if they did, how that tissue’s use in vaccines would represent a divergence with the Catholic teachings to which Petitioner claimed to subscribe” (emphasis added). This statement suggests that the documents petitioner submitted at the interview with the liaison may have contained information regarding the link between the vaccines to which petitioner objects and aborted fetal tissue. Indeed, through submission of the chart to the liaison, for example, the record indicates that petitioner has attempted to demonstrate a link between the MMR and varicella vaccines and aborted fetal tissue. The chart lists vaccines for various illnesses and diseases, including MMR and varicella, identifies the “fetal cell line” from which each derives, and indicates whether or not an “ethical version” – one that is not derived from aborted fetal cell lines – for each such vaccine exists.

As part of this appeal, petitioner has also produced several journal articles regarding the linkage between vaccines and aborted fetal tissue. While, as noted above, I do not take judicial notice of what petitioner alleges to be the “medical” and “incontrovertible fact” that the MMR and varicella vaccines derive from aborted fetal tissue, I do note that the record in this proceeding contains evidence that, at the very least, raises a question as to the nexus asserted by petitioner. Accordingly, rather than attempt to review a determination in which respondent does not appear to have fully considered and addressed the information submitted by petitioner as part of her request and this appeal, I will remand this matter to respondent for a full determination of whether petitioner has submitted evidence sufficient to support her claim of a linkage between the use of cells derived from aborted human fetal tissues and the MMR and varicella vaccines to which she objects.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this order, respondent make a determination, in accordance with this decision, as to whether the student is entitled to an exemption from the MMR and varicella immunization requirements of PHL §2164 and that, in making such determination, respondent shall consider all relevant information submitted by petitioner.

END OF FILE

 

[1]  In a reply affirmation, petitioner’s attorney requested that I take judicial notice of the “medical fact” that the MMR and varicella vaccines are made from aborted fetal tissue. While I accepted petitioner’s reply documents as described above, I declined to take such judicial notice.

 

[2]  Petitioner alleges that, following receipt of the coordinator’s October 2, 2012 memorandum, she had a telephone conversation with the liaison in which she asked the liaison to support her exemption request. Petitioner also provides a CD recording of the conversation and her own transcription of such recording, claiming that such recording occurred by “mistake ... without either person knowing it at the time.” I note that §4506 of the Civil Practice Law and Rules provides that any evidence obtained by illegal eavesdropping is inadmissible in any hearing or proceeding before any department, officer, agency or other authority of the State. Under this section, an aggrieved party in a proceeding must make a motion before a justice of the Supreme Court in order to suppress the contents of an unlawfully recorded conversation. In this case, respondent made no such motion and does not raise any specific objection to the recording. However, I also note that the record contains no sworn or written statement from the liaison regarding this conversation. Therefore, while I have considered this information as part of the record in this case, I have weighed it accordingly.