Appeal of C.T, on behalf of her children J.P. and R.P., from action of the New York City Department of Education regarding immunization.

Decision No. 16,964

(August 29, 2016)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Evan Schnittman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her children, J.P. and R.P. (“the students”), are 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, petitioner’s children attended school in respondent’s district.  By letter dated November 11, 2015, petitioner sought a religious exemption from immunization pursuant to PHL §2164, stating that, among other things, “the practice of vaccination is contrary to our sincere and genuine religious belief and violates our right to practice our religious principles protected by the First Amendment to the United States Constitution.”  It went on to say:

We believe that our bodies are sacred temples because they are made in the image of God. God gave us an immune system to fight disease and we must have faith in God that our bodies were born perfect and our immune system protects us.  If we take care of our body, mind and heart following the laws of God, there is no need to inject ourselves with biological material that decays and rots in our body.  

In support of her religious exemption request, petitioner also cites different verses from the Bible.

By memorandum dated December 22, 2015, respondent’s Health Service Coordinator (“coordinator”) in respondent’s Office of School Health (“OSH”) denied petitioner’s immunization exemption request on the grounds that petitioner’s documentation was inadequate to warrant an exemption and did not substantiate that petitioner holds “genuine and sincere religious beliefs which are contrary to immunization.” Petitioner was further informed that R.P. has all of the required vaccines “except for DTap#5, and MMR#2.”  Petitioner was also informed that she could appeal the determination by arranging an interview with Carine Jean-Pierre, a Health Liaison for the Children First Network (“CFN liaison”). 

On or about January 5, 2016, petitioner interviewed with CFN liaison Jean-Pierre.[1]  The record indicates that during the interview, petitioner was asked questions related to her opposition to immunizations and the religious basis for her beliefs.  In response, petitioner acknowledged that her religious beliefs concerning immunizations changed approximately six years ago, after a church friend explained to petitioner that vaccines allegedly include harmful ingredients such as aborted fetal tissue, mercury, aluminum, cow hormones and cow virus.  Petitioner further explained that she is not opposed to medical intervention in all circumstances and would allow the use of medicine, x-rays, or blood transfusions under certain circumstances.    

By memorandum dated January 11, 2016, respondent’s coordinator denied petitioner’s appeal, stating that the documentation submitted by petitioner and the information provided during her appeal interview do not substantiate a finding that she holds genuine and sincere religious beliefs which are contrary to immunization.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 7, 2016.

Petitioner asserts that, as a Catholic, she has genuine and sincere religious beliefs that are contrary to immunization. Petitioner also claims, inter alia, that respondent acted arbitrarily, denied her due process rights and failed to provide her with specific reasons for the denial of her request.  Petitioner seeks a religious exemption for the students pursuant to PHL §2164.

Respondent maintains 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 medical, moral, philosophical, political, scientific and/or sociological objections to immunization.  Respondent further asserts that its determination was rational, not arbitrary or capricious, and in all respects proper.

Initially, I must address the procedural issues.  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, and Decision No. 15,810).  Therefore, to the extent that petitioner attempts to raise constitutional issues in regard to this appeal, I decline to consider such constitutional claims.

The record indicates that, by letter dated February 11, 2016, my Office of Counsel returned petitioner’s petition because it failed to contain the notice required by §275.11 of the Commissioner’s regulations and did not include an affidavit of personal service in accordance with §§275.8 and 275.9 of the Commissioner’s regulations.  It was also not verified as required by §275.5 of the Commissioner’s regulations.  On February 26, 2016, my Office of Counsel received a corrected petition.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821). 

According to petitioner’s affidavit of service, the petition was served on February 23, 2016, which is more than 30 days after petitioner’s receipt of respondent’s January 11, 2016 determination to deny petitioner’s religious exemption request.  Petitioner acknowledges that her appeal is untimely.  However, she asserts that “when I originally sent my petition on February 8th, 2016 within the 30 day appeal period I was not aware due to not speaking English that I had to serve the Board of Education at 100 Church Street....”    I note that a description of and instructions regarding the appeal process is publicly available in multiple languages, including Spanish, on the New York State Education Department’s website as well as respondent’s website.  Accordingly, I find no unusual circumstances in this case and petitioner has not provided a sufficient basis upon which to excuse her delay (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,575; Appeal of Perou, 49 id. 389, Decision No 16,059). Therefore, petitioner’s appeal is dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, PHL §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 petitioner qualifies for a religious exemption for her children 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; 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 his or her child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of his or her 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).

Although respondent’s coordinator avers that one factor she considered in denying petitioner’s request was the students’ immunization histories, the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Indeed, in both the CFN liaison interview and the instant appeal, petitioner explains that, “At the time I had [the students] vaccinated but because I had been unaware as to the conflict it was causing with my religious beliefs.” Petitioner further states that, after a discussion with her friend in or around February 2010, petitioner “proceeded to research this for myself and to learn what the bible has to say about this.”

Respondent also argues that petitioner’s assertion that her opposition to immunization is based on sincerely held religious beliefs is undermined by her statements to the CFN liaison that she is not opposed to medical intervention in all circumstances and would allow the use of medicine, x-rays, or blood transfusions under certain circumstances.  In this regard, I note that the fact that petitioner would consent to medical treatment of a sick child is not necessarily determinative.  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).  However, petitioner fails to explain how her religious beliefs allow medical treatment under certain circumstances but not others.

To support her request for a religious exemption, petitioner states in her petition that “our bodies are holy temples created in God’s image.  If we taint it with vaccines and unhealthy foreign substances we are defiling his temple.”  Petitioner also quotes various statements from the Bible similar to the Bible verses she cites in her November 11, 2015 initial exemption request. I have previously held that citations to Biblical verses and passages are not sufficient to establish that petitioner holds 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).  

Moreover, although petitioner claims that vaccines contain harmful ingredients such as aborted fetal tissue, mercury, aluminum, cow hormones and cow virus, she has failed to demonstrate which vaccines, if any, contain such harmful ingredients or provide any documentation which attempts to establish a nexus between the student’s required vaccines and her claimed religious objection to the vaccines or their ingredients (cf. Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294). 

Petitioner’s reliance on a previous exemption granted by a non-public school in 2013 is misplaced (see Appeal of O.M. and R.M, 52 Ed Dept Rep, Decision No. 16,414; Appeal of S.B. 48 id. 332, Decision No. 15,875).  I note that the letter produced by petitioner granting such exemption consists of four sentences and appears to reference only J.P.  In any event, district officials are obligated to make their own determination of whether petitioner’s children qualify for a religious exemption (see Appeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875).

Petitioner further contends, among other things, that respondent’s appeal process is flawed, that she was denied a translator to assist her at the CFN liaison interview, and that respondent’s coordinator was not present during the CFN liaison interview to sufficiently assess petitioner’s credibility.  Other than her conclusory statements, petitioner provides no support for her allegations. Accordingly, I find no merit to these claims.

Although petitioner claims that respondent provided “no specific reason” for the denial of her exemption request, the coordinator’s memoranda (December 22, 2015 and January 11, 2016) taken together notified petitioner of the deficiencies of petitioner’s submissions and described what further information she needed to provide to establish that her opposition to immunization stems from sincerely held religious beliefs.  I also note that prior Commissioner’s decisions have recognized that respondent’s use of form letters is not per se unreasonable, and that in a school district of DOE’s size and organizational complexity, modified form letters may be an efficient and effective means of communicating with parents in certain situations (Appeal of L.S., 50 Ed Dept Rep, Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).  Accordingly, based on the record as a whole, I reject petitioner’s contention that the denial was too vague, arbitrary or capricious.

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, cert. denied 133 SCt 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 respondent’s determination is unsupported by the record or otherwise arbitrary and capricious, or in violation of law (see Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670).  The appeal, therefore, must be dismissed.

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

THE APPEAL IS DISMISSED.

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