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Decision No. 17,181

Appeal of L.T. and J.T., on behalf of their daughter V.T., from action of the New York City Department of Education regarding immunization.

Decision No. 17,181

(September 6, 2017)

Chesney & Nicholas, LLP, attorneys for petitioners, John M. Gherlone, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Chlarens Orsland, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their daughter, V.T. (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 2016-2017 school year, the student was enrolled in respondent’s district.  By letter dated October 13, 2016, petitioners sought a religious exemption from immunization pursuant to PHL §2164, stating among other things, as follows:

When we were introduced to vaccinating our children something in our conscious [sic] told us that it was against God’s intention.  We struggled with this idea throughout our parenthood.  Our conscious [sic], which we believe is built by God and sharpened by education and religion, told us to research more about vaccinations and look through our religions [sic] teachings to help make the correct choice.  After educating ourselves further on the subject, we found a few things about the process that prevent us from vaccinating with a clear conscious [sic].

According to respondent, the student has all required vaccines except for DPT #5, Polio #4, Hepatitis B #3, and varicella. 

In their letter, petitioners indicated that they had always been religious and had previously vaccinated all of their children despite “a deep feeling of discontent when we allowed some vaccines in the past.”  Petitioners described a turning point after their last child received vaccinations after they “gave in” to a pediatrician who “expressed a ‘bad vibe’”:

That night we both felt the same regrets that we did something wrong by God.  Watching our son that night, we noticed our son’s spirit was not the same.  We felt that he was altered on a soul level.  We deeply entered into a state of receiving and “felt” through God’s transmission that this act was not for our family.  This was anything but a superficial feeling.  It was a feeling that welled up from deep inside of us from our union with God.  It was what we might call a revelation and a significant turning point in our lives.  We knew at this point that we had to turn to the scriptures for guidance where we found direction and vowed never to vaccinate our children again.  After this vow of consciousness, we became much closer to God now that we had made the right decision.  There was not this “push and pull” within us and we felt more aligned with spirit and our faith.

In their letter, petitioners explained that they opposed vaccines for two reasons.  First, “vaccines use innocent aborted children in their composition which we are taught and believe is an act against God.”  Second, “vaccines are aimed at enhancing our physical bodies by altering our immune systems in an effort to be better than what God has created.”  Petitioners contend that this conflicted with their Christian faith, which “states that God is the only creator who is Divine and all-knowing.”  According to petitioners,

[v]accinating is an implication that God is less than perfect in displaying a mistrust in both his creation and his Divine plan.  This action in itself would go against our religion and deprive us from having a pure heart needed to enter heaven.... Vaccines quite simply imply that God is not perfection.

By memorandum dated November 3, 2016, the health service coordinator (“coordinator”) in respondent’s Office of School Health denied petitioners’ 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.”  Specifically, the memorandum stated that, although petitioners “cited passages of scriptures and made general statements about your religion, you have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.”  Further, the memorandum indicated that “[the student] has all of the required vaccines, except for DPT#5, Polio#4. Hep.B#3 and varicella#2” and that “[y]ou have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.”  The memorandum provided information about how to appeal the determination, which petitioner did by requesting an interview with respondent’s health director (“director”). 

Petitioners met with the director on November 18, 2016.  In response to the director’s questions about their sincerely-held religious beliefs, petitioners explained, among other things, as follows:

[a]bout a year ago, I first discovered the controversy that vaccines had with my faith.  I cannot allow vaccines and be able to maintain a clear conscience and a pure heart needed to prepare for the afterlife to be permitted into the kingdom of God.[1]

By memorandum dated November 21, 2016, the coordinator denied petitioners’ appeal, stating that the “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” and that “[y]ou have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.”  This appeal ensued.  Petitioners’ request for interim relief was denied on January 9, 2017.

Petitioners contend that their objections to immunizations are based on genuine and sincerely-held religious beliefs and seek a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164.  Petitioners also claim that respondent failed to provide them with specific reasons for the denial of their request, that the appeal process is flawed, and that the denial was arbitrary and capricious.  Petitioners also appear to assert that respondent’s actions are violative of their due process rights.

Respondent contends that petitioners’ objections to immunizations are not based on genuine and sincerely-held religious beliefs, but rather are vague and conclusory statements based on general unease about immunization, and that petitioners failed to meet their burden of proof. Respondent further asserts that petitioners 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.

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 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).  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 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 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). 

Respondent argues that petitioners’ assertion that their opposition to immunization is based on sincerely-held religious beliefs is undermined by their statements at the director’s interview that they would “consider” medicine “if something demanded it.”  Respondent asserts that this is inconsistent with their objection to vaccination; namely, that “[v]accinating is an implication that God is less than perfect in displaying a mistrust in both his creation and his Divine plan.”  However, 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). 

Nevertheless, upon careful consideration of the entire record, I find that petitioners have failed to meet their burden of establishing that their opposition to immunization stems from sincerely-held religious 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).

Petitioners’ initial statement consists of numerous citations to Biblical verse, with minimal elaboration or explanation of their connection to the origin of petitioners’ religious beliefs and their opposition to vaccination.  Petitioners also identify two specific bases for their objection to vaccines.  The first is their position that “vaccines use innocent aborted children in their composition which we are taught and believe is an act against God.”  However, petitioners also state that such is a consideration “to determine if an act is morally in line with our beliefs.”  Petitioners conclude, therefore, that “the decision to vaccinate is deeply immoral” and contrary to their belief and faith.  As noted above, a religious exemption does not extend to persons whose views are founded upon “medical or purely moral considerations,” “scientific and secular theories,” or “philosophical and personal beliefs” (see Farina v Bd. of Educ. of City of New York, 116 FSupp2d 503).   While petitioners’ opposition to the use of fetal tissue may be based, in part, on moral considerations, the record also indicates that it is also based, in part, on petitioners’ religious beliefs.  Nevertheless, petitioners fail to establish any nexus between their claimed religious objection to abortion and the use of fetal tissue and the practice of vaccination.  Indeed, in their exemption request letter, petitioners acknowledged that “not all vaccines are made with human cells from aborted fetal tissue,” while also claiming that they object to all vaccinations, irrespective of whether they actually derive from fetal material.  This position undercuts petitioners’ argument that their opposition to immunization is actually religious in nature (see e.g. Appeal of C.S., 50 Ed Dept Rep, Decision No. 16,163).  On this record, therefore, petitioners have failed to carry their burden of proof with respect to this claim.

Petitioners also claim that it is their understanding that “vaccines are aimed at enhancing our physical bodies by altering our immune systems in an effort to be better than what God has created.”  They assert that vaccines “quite simply imply that God is not perfection” and that vaccines “go against the principles of God.”  However, while these statements 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 petitioners assert that they “were always against vaccines” and “feel the decision to vaccinate is deeply immoral,” they have not sufficiently explained why they previously “allowed some vaccines in the past” and the explanation for their change of heart is contradictory.  Although the fact that petitioners’ 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 FSupp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250), it is relevant to an 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 SCt 1997).  Nevertheless, petitioners’ inconsistent explanations of their change of heart regarding vaccinations, as discussed below, undermines their claims.

As noted above, in their initial request for a religious exemption, petitioners contended that it was a recent vaccination of their youngest child which precipitated their change of heart.  But petitioners later stated at the November 17, 2016 interview with the director that “[t]here was a turning point after coming closer to God and after turning to God where [they] learned that [they] need to do more research.”  I find these two explanations inconsistent.  Petitioners’ initial description of their change of heart was revelatory; i.e., that a particular vaccination episode caused them to feel “through God’s transmission that this act was not for our family.”  However, when petitioners were queried about the extent of their opposition to vaccination at the November 17, 2016 meeting, they did not mention this episode.  Instead, petitioners stated that “[t]here was a turning point” which caused petitioners “to do more research.”  This research entailed “reading books and articles and researching the CDC website and sp[eaking] to people in the church [and] read[ing] the [B]ible.”  As a result of this research, petitioners stated that they “discovered what vaccines were and why [they] could not take part in them.”  This research-based explanation is not consistent with petitioners’ initial explanation; such inconsistency undermines a finding that petitioners’ beliefs are sincerely held.

Petitioners, nevertheless, argue that respondent’s coordinator failed to consider a statement by the director regarding their sincerity in a November 17, 2016 letter.  In this regard, petitioners challenge the procedure by which the district evaluated their exemption request and contend that respondent’s appeal process is flawed and denied them due process.  Petitioners note that, in the director’s November 17, 2016 letter, the director indicated that petitioners:

seemed sincere in [their] explanation that they have moved closer to God in recent years and that they now feel they are condoning abortion if they immunize their children, and they will be committing a mortal sin which will interfere with their ability to enter the kingdom of God.

However, the director qualified her statement in the letter, stating that she “ha[d] no way of judging [petitioners’] intentions and true sincerity.”  Therefore, as the coordinator explains in an affidavit submitted with this appeal, although she considered the director’s statement regarding petitioners’ credibility, she did not afford it significant weight.  Upon review of the record, I do not find the coordinator’s determination in this respect to be arbitrary or capricious.  Moreover, petitioners were aware that the director was not the “final decision maker” and that petitioners’ written response to the interview questions and additional submissions would be further assessed and reviewed by respondent’s coordinator who would make the final decision.

Next, as noted above, petitioners assert that some “vaccines use innocent aborted children in their composition which we are taught and believe is an act against God.”  However, petitioners failed to assert in their petition or demonstrate which vaccines, if any, contain such ingredients or provide any documentation to establish a nexus between the student’s required vaccines and their claimed religious objection to the vaccines or their ingredients (cf. Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  Indeed, respondent submits evidence that alternative vaccines exist for polio, hepatitis B, and DTP that do not contain material to which petitioners specifically object.

Petitioners also assert that respondent failed to provide sufficient explanation of the reasons for denying their request for a religious exemption.  To support their claim, petitioners rely on guidance from 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 that “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.” Initially, I note that previous Commissioner’s decisions have recognized that a school’s use of form letters is not per se unreasonable, and that in a school district of respondent’s size and organizational complexity, modified form letters may be an efficient and effective means of communicating with parents in certain situations (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,169; Appeal of L.S., 50 id., Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).  As described above, the November 3 and 21, 2016 memoranda, taken together, notified petitioners that their documentation was deficient and did not demonstrate sincerely-held religious beliefs which are contrary to immunization.  The coordinator elaborates in her affidavit that petitioners failed to provide sufficient documentation or information to substantiate a finding that petitioners held a genuine and sincere religious belief contrary to immunizations.  For purposes of this appeal, respondent has articulated a sufficient rationale for its determination, to which petitioners have had ample opportunity to respond (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410) and have indeed done so.  However, I remind 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. 

On this record, I find that petitioners have failed to demonstrate that their 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.

END OF FILE

 

[1] The record contains two documents regarding petitioners’ responses to these questions.  The first, submitted by petitioners, is an affidavit executed by petitioner J.T. on December 11, 2016 and consists of his recollection of the questions and answers to the “best of [his] memory.”  The second, submitted by respondent, are typed notes of the director dated November 17, 2016, the date of the meeting.  Given the contemporaneous nature of the November 17, 2016 typewritten notes, I afford more weight to this document than to petitioner J.T.’s after-the-fact recollection.