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Decision No. 16,920

Appeal of A.Z. and L.C., on behalf of their daughter V.Z., from action of the Board of Education of the Ramapo Central School District regarding immunization.

Decision No. 16,920

(July 5, 2016)

Greenberg, Wanderman & Fromson, Esqs., attorneys for respondent, Stephen M. Fromson, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Ramapo Central School District (“respondent”), that their daughter, V.Z., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On or about February 26, 2014, petitioners enrolled their daughter in respondent’s Suffern Middle School.  Prior to that time, V.Z. attended the New York City Department of Education’s (“DOE”) P.S. 206 in Brooklyn, New York.  Upon enrollment in respondent’s schools, petitioners submitted a Request for Religious Exemption to Immunization Form, requesting a religious exemption from the immunization requirements of PHL §2164.  Specifically, petitioners advised that that their daughter was exempt from vaccinations due to their religious beliefs and that DOE had previously granted a religious exemption.  Together with their request, petitioners submitted a copy of a January 6, 2013 letter which they previously submitted to DOE, since their “beliefs have not changed since then”; a February 4, 2013 determination by DOE’s health services coordinator granting petitioners’ request for a religious exemption; and “character references” from reverends from the Holy Russian Orthodox Church to which petitioners belong.

The January 6, 2013 letter stated, among other things, that petitioners came to the United States from the Republic of Tajikistan when V.Z. was three years old and had received all of her childhood vaccinations as required in Tajikistan.  However, petitioners “began to realize that vaccinations were wrong” in 2009 when they were expecting their second child and a member of their church asked whether they were going to vaccinate the baby.  Petitioners learned from their studies and conversations with priests and members of their congregation that “vaccinating is not in accord with [their] faith,” for two reasons.  First, petitioners believe “that certain passages in the Bible, including Acts 15:18-21, Leviticus 17:11-14, Leviticus 19:19, and Deuteronomy 22:9, prohibit the adulterating or consumption of the blood, and the mixing and adulterating of the seed.”  According to petitioners, all vaccines are “the result of crossing and grafting different tissue and fluids including blood, as well as cells from aborted human fetuses, and dead unclean animals, all of which is forbidden in Scripture” (emphasis omitted).  Petitioners explain that they follow the deuterocanonical law, which provides that “it is a sin to ingest unclean meats such as pigs, crabs, lobsters, monkeys, and so on” so it would also be a sin to inject parts of the same animals “directly into our veins or those of our children.”

Second, petitioners state that “our bodies were designed by God to heal themselves of injury” and “it is within God’s power alone to rid the world of disease and death and the Scriptures teach us that everything we need to secure our health has been provided for us already from the beginning.”  They assert that God provided herbs for medicine for injuries to the body, and as follows: 

Our Lord Jesus teaches us here and in context of Matthew 9 that sickness proceeds forth from the sickness of the soul which becomes sick by straying from the path prescribed by God the Father and the Son, Jesus Christ.  The soul’s healing comes from believing in and following the ministry of Jesus Christ and of the Prophets who minister the ways of God.

Faith, prayer asking for remission of sin, and following the ways that God teaches us through Scripture the best we can is the only way to live our lives in health and happiness.  Vaccines do not fit into this formula.  Vaccines represent a betrayal and rejection of faith by abandoning our responsibility to follow the commandments of God the Father, choosing instead to incur a terrible sin by placing our faith in the false gods and idols of those scientists who blaspheme and call the practice of vaccination the ‘salvation of mankind’.  It cannot escape discernment how vaccination is nothing but rebellion against God.

On August 5, 2014, petitioners met with the middle school principal (“principal”) (“August 5 meeting”).  While the record contains no transcript of the meeting, petitioners submit an affidavit, sworn to on September 22, 2014, in which they provide a “true and correct record of the actual questions asked and answers given” during the interview.  According to petitioners, in response to the principal’s questions, petitioner A.Z. stated that she opposes vaccination because of “defilement of the blood which is prohibited,” and referenced the January 6, 2013 letter for further reasons; that should V.Z. step on a rusty nail in school, she should not be given a tetanus shot but she should be hospitalized or helped; that petitioners give their children antibiotics “when absolutely necessary” because they “fall under the classification of permissible medicine, vaccines are not medicine and are an entirely different animal”; and that petitioners may take their children to the pediatrician for annual checkups “if a need arises [because t]he bible [sic] teaches us to honor the physician.”

By letter dated August 20, 2014, the principal denied petitioners’ request for a religious exemption, determining as follows:

1.You submitted a Request for Religious Exemption to Immunization Form, notarized on February 26, 2014, to the School District for review.  This form was submitted along with a letter from you which references your belief in God and your opposition to vaccinations thru [sic]: ‘Defilement of the blood and of the soul by introducing abominable substances.’  As the building principal, I am required by law to make a good faith effort to determine whether you have legally demonstrated the right for an exemption.  In my opinion, your statements in that letter fail to adequately detail what you allege to be your genuine and sincerely held belief against immunization.

2.During our meeting you were asked several questions regarding your beliefs and your willingness to obtain medical intervention from a pediatrician.  When asked if you would permit your child to take an antibiotic you responded ‘antibiotics are permitted when absolutely necessary and that your beliefs profess to respect and honor those in the medical profession’ [sic]. These answers are contradictory, and they do not support your alleged genuine and sincerely held religious belief.

The August 20 letter also informed petitioners that they could appeal the principal’s determination to the Commissioner of Education within 30 days pursuant to Education Law §310.  This appeal ensued.  Petitioners’ request for interim relief was granted on October 3, 2014.

Petitioners maintain that they have sincerely-held religious beliefs against immunizing V.Z. and that respondent’s denial of their exemption request was arbitrary and capricious.  Petitioners complain that, after submitting their request for an exemption, they received no response for nearly five months prior to the scheduling of the August 5 meeting.  Petitioners further contest the principal’s consideration of the August 5 meeting in his August 20 determination letter.  They assert that they were never advised of the nature or purpose of the August 5 meeting, and were not anticipating the “sincerity test” they were given.  Petitioners allege that the principal’s August 20 determination illustrates that he could not have given careful consideration to petitioners’ original submission in which they clearly and concisely detailed their religious beliefs.  They claim that the determination was not based upon their written statement of religious beliefs, but rather was based on the August 5 meeting during which the principal directed the conversation toward medical issues.  Petitioners contend that neither PHL §2164, 10 NYCRR §66-1.3(d), nor respondent’s own policies require such a meeting for purposes of making a religious exemption determination, and therefore, the principal acted outside of his authority.  Petitioners assert that, as a result, they were deprived of due process.

Respondent asserts that the determination was not arbitrary or capricious because petitioners failed to establish that their objections to immunizations are based on genuinely and sincerely-held religious beliefs.

I must first address the procedural issues.  By letter dated October 15, 2014, respondent’s counsel requested permission to submit a late answer.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]).  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

According to the affidavit of service, the petition was served on September 22, 2014.  Thus, respondent had until October 13, 2014 to serve its answer.  Respondent’s affidavit of service indicates that the answer was served on October 15, 2014, two days late.  In his October 15 letter, respondent’s counsel asserts that he is a sole practitioner and has been suffering from a debilitating medical condition since September 13, 2014, which has forced him to be out of his office for long periods of time.  He was also out of work during Rosh Hashanah and Yom Kippur, “the holiest days in the Jewish faith.”  Petitioners object to the late answer.  While counsel’s illness has not been found to be a compelling excuse for a late answer (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,515), I note that, in this case, there is no evidence that petitioners have suffered any prejudice, and petitioners had a full opportunity to and in fact did reply.  In addition, a stay was issued and V.Z. has been attending school.  In light of these circumstances, and absent prejudice to petitioners, I have considered respondent’s answer (see Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731).

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 as follows:

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 (see Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 503; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  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 FSupp 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 FSupp2d 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 K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 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).

In their petition, petitioners contest both reasons for denial of their request for a religious exemption from immunization in the principal’s August 20, 2014 determination.  The first reason asserted by the principal was that, “[i]n my opinion, your statements in that letter fail to adequately detail what you allege to be your genuine and sincerely held belief against immunization.”  Petitioners assert that this purported reason lacks specificity and is incomprehensible.  Additionally, petitioners assert that their original statement is “dedicated to and filled with detailed, clear, and concise explanations of petitioners’ religious faith and beliefs which prohibit the practice of vaccination”  and that it is therefore “highly doubtful” that the principal carefully reviewed the original statement.

I take administrative notice of guidance issued by the New York 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.”

While the first reason does not meet the specificity contemplated by the Department per se, respondent’s denial letter does go on to articulate a second reason for denial in more detail:

When asked if you would permit your child to take an antibiotic you responded ‘antibiotics are permitted when absolutely necessary and that your beliefs profess to respect and honor those in the medical profession’ [sic]. These answers are contradictory, and they do not support your alleged genuine and sincerely held religious belief.

Petitioners note that this basis for denial does not take into consideration any part of petitioners’ religious statement, but rather, focuses on the answers given during the August 5 meeting.  Petitioners assert that, in their original statement, they “clearly state that vaccines are an abomination because they are a pestilence which are bred in and on the tissue of beasts which are declared to be unclean for mankind to eat or even touch in some cases.”  For example, petitioners include an “excerpt” from their religious statement:

All vaccines are nothing more than contemporary chimera!  They are the result of crossing and grafting different tissue and fluids including blood, as well as cells from aborted human fetuses, and dead unclean animals, all of which is forbidden by Scripture.  All this in order to cultivate a vial of pestilence with strands of mutant RNA and DNA to be injected into our children’s bodies (emphasis omitted).

Petitioners state that “it can plainly be shown from the Deuterocanonical books of the law that there is a distinction between clean and unclean beasts and there is a prohibition from consuming of and tainting of the blood.” 

Respondent’s middle school principal met with petitioners in August 2014.  The record before me contains no transcript of the meeting.  However, petitioners submit an affidavit, sworn to on September 22, 2014, in which they provide a “true and correct record of the actual questions asked and answers given” during the interview.  Respondent does not object to petitioners’ account of the meeting.  According to petitioners’ account, when asked why they opposed vaccination, petitioners referred to their original letter and the principal did not ask any questions pertaining to that letter.  Rather, the principal asked petitioners a number of questions irrelevant to the religious exemption request.  For example, petitioners were asked whether their children receive medical checkups by a pediatrician and whether their children could receive other medicine. 

Respondent asserts that petitioners’ claims that their beliefs are sincerely held are undermined by their statements to the principal that “antibiotics are permitted when absolutely necessary and that [their] beliefs profess to respect and honor those in the medical profession.”  However, the fact that petitioners would consent to medical treatment of a sick child is not necessarily determinative.  As noted above, individuals need not oppose medical treatment per se to qualify for a religious exemption, but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of C.D. and E.D., 46 Ed Dept Rep 317, Decision No. 15,520).  Moreover, petitioners explain that the statements made to the principal are all supported by their faith.  Indeed, petitioners explain in their petition that certain medicines, including antibiotics, are “clean” because they are “different than vaccines” and that “reactive treatment and medicine, in the sense that it is meant to mean common medicines for common ailments after the fact, is permissible” generally.

In its verified answer, respondent further asserts that petitioners have not demonstrated a relationship between their alleged religious objection to unclean blood and unclean beasts and the practice of vaccination.  It does not appear from the record that, prior to making a determination, the principal questioned or asked petitioners to explain their statement that the vaccines at issue contain “unclean meats such as pigs, crabs, lobsters, monkeys, and so on.”  However, as discussed above, school officials 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).  Should any need for elaboration regarding such statement have arisen, the August 5 meeting would have been an opportunity for the principal to request an explanation or supporting documentation (see Appeal of C.O., 52 Ed Dept Rep, Decision No. 16,421).  In this regard, I find no merit to petitioners’ claim that respondent improperly requested a meeting.  While nothing in the applicable law or regulations requires parents to attend such a meeting, there is also nothing that prohibits school officials from requesting a meeting with parents.  Nevertheless, while the record indicates that, after reviewing petitioners’ exemption request, questions remained about the existence of a sincerely-held religious belief, the principal requested a meeting but did not request supporting documents from petitioners as required by Department of Health regulations (see 10 NYCRR §66-1.3[d]); Appeal of R.R., 54 Ed Dept Rep, Decision No. 16,663).  As a result, respondent is urged to review its communications, processes, and procedures to ensure compliance with applicable laws, regulations, and guidance in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions (see Appeal of R.R., 54 Ed Dept Rep, Decision No. 16,663).

While the record indicates that the principal did not specifically question petitioners regarding the relationship between their alleged religious objection to unclean blood and unclean beasts and the practice of vaccination, respondent did assert in its answer that petitioners have not demonstrated such a nexus.  As a result, while petitioners did not have the opportunity to respond to this particular concern prior to respondent’s denial of their exemption request, the issue was raised in respondent’s answering papers and petitioners have now had sufficient opportunity to address it.

In their reply, petitioners state that their

‘objection to vaccination’ ... had never stated anywhere that it was based upon ‘a relationship between their alleged religious objection to so-called unclean blood and unclean beasts’!  Petitioner doesn’t know where or how Respondent obtained that idea.  Indeed, no reference was provided to fathom it.

Although not entirely clear, this assertion appears to directly contradict statements made by petitioners in their January 6, 2013 request letter, which did indeed include claims regarding “dead unclean animals” and “unclean meats.”  Accordingly, I find that petitioners did not sufficiently rebut respondent’s claim in their detailed reply, nor did they submit any documentation to support the claims made in their January 6, 2013 letter and in their petition that the vaccines they oppose contain materials from aborted human fetuses and unclean animals to which they object.  Such a nexus is required for petitioners to carry their burden of proof (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,491; Appeal of C.O., 52 id., Decision No. 16,421; Appeal of B.R. and M.R., 50 id., Decision No. 16,250; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).

Further, petitioners’ citations to biblical verses and passages are not sufficient to establish that they hold genuine and sincere religious beliefs against immunization (see Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971).  Prior Commissioner’s decisions have generally held that mere citations to statements that 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 genuine and sincere religious beliefs against immunization (see e.g. Appeal 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).  In the instant appeal, while petitioners cite Biblical texts and religious materials and generally describe their belief that vaccines contain unclean animal and human fetal tissue, they do not provide any evidence that the immunizations to which they object contain such materials (cf. Appeal of N.C., 55 Ed Dept Rep, Decision No. 16,805).  Under the totality of the circumstances, I find that petitioners have failed to demonstrate that their opposition to immunization stems from sincerely-held religious beliefs and the appeal must therefore be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE