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Decision No. 16,954

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education,[1] Julia Sykes, Health Service Coordinator, and Ray Johnson, Borough Field Support Center Health Director, regarding immunization.

Decision No. 16,954

(August 26, 2016)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE”); Julia Sykes, Health Service Coordinator (“coordinator”); and Ray Johnson, Borough Field Support Center (“BFSC”) Health Director (“director”) (collectively “respondents”), 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 dismissed. 

During the 2015-2016 school year, the student was enrolled in respondents’ school district.  By letter dated December 15, 2015, petitioner submitted a Request for Religious Exemption to Immunization form asserting that immunization of the student would be contrary to “the deeply held, genuine and sincere religious beliefs of our family....”  Petitioner states that “to vaccinate knowing the past reactions [the student] has had violates several principles of my religion, namely ashima....”  Petitioner explains that she “cannot violate ashima, I cannot knowingly cause harm to anyone. Several vaccines contain aborted fetal tissue or are cultured in fetal serum.”  Petitioner further explains as follows:

[The student] had a bad reaction several times, all of which were glazed over as ‘normal reactions to vaccination’ that were anything but. Parents whose children are suspected of having the disease, who are experiencing the same exact symptoms, are urged to rush their children to the ER, I later found out.  The most severe and lasting reaction was the last time he was immunized. The negative consequences have persisted for several years and have required hundreds of thousands of dollars and man hours to deal with them.

Petitioner further asserts:

[M]y family is genetically predisposed to autoimmune disease and dysfunction.... Seeing as how [the student] also developed whooping cough, [which the student] was vaccinated for means that vaccination is not 100% and that it is now common knowledge that this vaccine actually caused [the student] to get the very illness it was supposed to protect him from.... Knowing all this, means ... I cannot expose [the student] to something I truly believe will cause him harm.

By memorandum dated February 17, 2016, the coordinator denied petitioner’s request for a religious exemption, determining that the documentation she 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 student] has all of the required vaccines except for MMR#2.”  The memorandum also informed petitioner of DOE’s appeal process and notified her that if her appeal was denied, she could commence an appeal to the Commissioner of Education pursuant to Education Law §310.  Petitioner appealed the determination and met with respondents’ liaison on March 9, 2016.  At the interview with the liaison, petitioner provided additional information related to her opposition to immunization and the religious basis for her beliefs.  According to respondents, petitioner vaguely and briefly referenced her religious call to be a “critical thinker” and then continued in detail regarding her scientific research into the benefits and risks of immunization. 

According to the record, after reviewing petitioner’s application in its entirety, the coordinator determined that the appeal should be denied because petitioner’s documentation demonstrated that the student received the majority of the required immunizations and that medical concerns and personal philosophical beliefs, rather than religious beliefs, prompted petitioner’s request.  

By memorandum dated April 12, 2016, petitioner’s appeal was denied.  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, the student would not be permitted to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 20, 2016.   

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization. Petitioner also claims that respondents failed to provide her with specific reasons for the denial of her request. She seeks a religious exemption from the required vaccine pursuant to PHL §2164.

Respondents contend that the appeal should be dismissed for lack of proper service. Respondents also maintain that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objections to immunizations are not based on genuinely and sincerely held religious beliefs, but rather are based on philosophical, political, scientific or sociological objections to immunizations.  Respondents further assert that the determination was rational, not arbitrary or capricious, and in all respects proper.

I must first address the procedural issues. To the extent that petitioner alleges that respondents have “discriminated against her for not being [a] Jehovah’s Witness or Christian Scientist,” and that these “Christian religions are granted immediate exemption.  All other[s] are denied and must continuously appeal,” I note that an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Accordingly, I will not address such claims.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  

As noted above, petitioner challenges the determination of DOE’s Coordinator of its Office of School Health.  Respondents assert that the designated agent for receipt of service of process for DOE is the Office of the Corporation Counsel located at 100 Church Street, and avers that, although petitioner attempted to deliver a copy of the petition to a DOE employee in Queens County, petitioner did not effectuate proper service at 100 Church Street.  Petitioner submits multiple affidavits of service but does not provide an affidavit of service indicating that she served DOE at the 100 Church Street address.  In addition, petitioner submits no reply or other competent evidence to refute respondents’ claim of improper service on DOE.  Where, as here, there is no proof that an individual has been authorized to accept service on behalf of respondent, service on that individual is improper (Appeal of J.S. and D.S., 55 Ed Dept Rep, Decision No. 16,821; Appeal of C.C., 53 id., Decision No. 16,526; Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Peterson, 48 id. 530, Decision No. 15,939; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).  Therefore, the appeal must be dismissed as to DOE for lack of proper service.

I note that, although Sykes and Johnson have also appeared in this proceeding, respondents’ counsel did not object on their behalf for lack of proper service.  Nonetheless, petitioner does not seek relief against individual respondents Sykes and Johnson and challenges only the denial of her religious exemption request.

The appeal be dismissed on 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 (see Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 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 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 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 or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent or 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).

Upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely held religious beliefs.  Petitioner practices Jainism and states, among other things:

[T]he three jewels of her religion are 1) belief in the six substances, which include soul, time and matter, 2) right knowledge of tattvas, which are about the nature of karma and 3) right action, which is to cause no harm to living beings, including all living things, beyond what is necessary for survival. 

Petitioner further explains:

[P]etitioner practices religious duties by living according to the five vows of non-violence, non-theft, truth, non-possessiveness, and chastity on a daily basis, while also practicing daily meditation and prayer, fasting/food austerity, being extremely conscious of food energy and the means of food production, practicing charity/kindness and seeking repentance/forgiveness of others, while continuing and sustaining a life lived consciously and conscientiously in pursuit of truth and knowledge.

Petitioner contends that “as a Jain householder, she has made many changes to her daily life, including rejecting certain medications and foods because of their production.” Respondents contend that “neither in [petitioner’s] December 15, 2015 letter, nor during [petitioner’s] March 9, 2016 interview, did [p]etitioner make mention of having acquired her current faith after the [s]tudent’s prior vaccination history” and “now for the first time, [p]etitioner offers to explain this contradiction: she converted to Jainism in 2010.” Respondents further contend that the contradictions and inconsistent statements provided by petitioner throughout the course of her religious exemption request and the instant appeal demonstrate that her opposition to the remaining MMR#2 vaccine is a decision in conformity with general medical concerns, or personal philosophy, rather than a specific religious belief against immunization.

Courts have consistently held that 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).  Similarly, the fact that petitioner’s child was immunized in the past is not necessarily dispositive in determining whether the individual has genuine and sincere religious beliefs (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250) although it does have a bearing on the assessment of the sincerity of the alleged religious beliefs (see, Caviezel v. Great Neck Public Schools et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16[2d Cir. 2012], cert. denied, 133 S Ct 1997). 

According to the record, although respondents’ coordinator considered the student’s prior immunization history as one factor in denying petitioner’s religious exemption request, petitioner explained in her December 15, 2015 letter that the student was “initially vaccinated due to my own ignorance lack of informed consent.”  Furthermore, in her petition, petitioner explains that she and the student have not received any preventative medical treatments since September 2009 “with focus instead on nutritional therapies and karmic cleansing and protection, and “since September 2009, much more information has come to light, including information about the materials which compose vaccinations.” Petitioner asserts:

[O]nly after deep investigation conducted on her own and lasting several months, were the nature of the contents of these shots known to be prohibited, and her understanding of the religious infringements regarding the petition and her child brought to light.

Therefore, I find that, while petitioner provided sufficient information to establish the basis for her change of heart regarding the student’s immunizations, she has not met her burden of proof in establishing that her opposition to immunization stems from sincerely held religious beliefs or that respondent’s denial was arbitrary and capricious.

To support her religious exemption request, petitioner confirms that the student has been diagnosed with autism; however, she believes that “[t]hrough her daily practice it has become clear that use of these prohibited materials are sources of adverse karma...” and “thus refuses to introduce prohibited materials into the petitioner’s child’s body again which will cause further karmic accumulation and harm to the child’s soul.” Petitioner states that “life begins at conception and that sources derived from abortion or the derivatives of abortion are strictly prohibited, resulting in the majority of vaccines being rejected” and “[b]oth the measles and rubella components of the MMR contain cellular material derived from aborted fetal cell lines, MRC-5 and WI-38, commonly used in vaccine production.”

I find that petitioner’s general statements are insufficient to establish the religious basis or origin of her beliefs (see Appeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  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).  Furthermore, petitioner fails to provide any documentation, other than her conclusory assertions, which attempts to establish a nexus between the required vaccination and her claimed religious objection to the use of cells derived from aborted human fetal tissues (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  The record indicates that petitioner was given numerous opportunities to explain the basis of her beliefs but failed to do so. Accordingly, I find that respondents’ determination was rational, reasonable and consistent with the law.

Finally, petitioner claims that “respondents failed to follow due process by not providing any written notices at any point with any specific reason for denial.”  However, as noted above, the February 17, 2016 memorandum explained that the student “has all of the required vaccines except for the MMR#2” and the April 12, 2016 memorandum explained that the documentation and information provided by petitioner during the appeal interview did not “substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization” but that she instead appears to object to immunization based upon “medical concerns, or a personal philosophy, rather than a specific religious belief against immunization.”  Consistent with the memoranda, the coordinator avers in this appeal that, in reviewing petitioner’s exemption request, documentation, and information submitted throughout the appeal process, she determined that the request did not substantiate a finding that petitioner held “genuine and sincere religious beliefs which are contrary to immunization.”  Respondents’ answering papers in this appeal also explain the basis for the denial of petitioner’s immunization exemption request which petitioner has had sufficient opportunity to attempt to address, as noted above (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  As noted, petitioner did not submit a reply or other evidence to refute respondents’ assertions.  On this record, I find that petitioner has failed to carry her burden with respect to this claim. 

 Accordingly, while the record reflects that petitioner may sincerely object to immunizations, the crux of the issue is whether the reasons for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16[2d Cir. 2012], cert. denied, 133 S Ct 1997).  The record, as a whole, lacks evidence of sincerely held religious objections to immunizations.  Accordingly, I find that petitioner has failed to demonstrate that her 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

 

[1] Although petitioner lists the “Board of Education of the 20/21 School District” in her original caption, she is challenging the determination of the Department of Education’s Health Service Coordinator in its Office of School Health.