Appeal of H.A., on behalf of her children M.F., N.H. and K.H., from action of the Board of Education of the Central Islip Union Free School District regarding immunization.

Decision No. 17,215

(October 11, 2017)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Central Islip Union Free School District (“respondent”) that her child, N.H. (the “student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.[1]  The appeal must be dismissed. 

According to the record, petitioner submitted a request for a religious exemption to the immunization requirements of PHL §2164 dated on or about June 20, 2015, upon N.H.’s enrollment in respondent’s Early Childhood Center.  Petitioner stated:

Our religion demands a vegan lifestyle and vaccinations contains [sic] a list of [ingredients] not at all suitable for vegans.  We as aboriginals/indigenous beings have our own healers....

In August 2015, petitioner met with respondent’s principal, assistant superintendent and counsel.  By letter dated August 10, 2015, the principal notified petitioner that her exemption request was denied because:

[T]he basic precepts that guide your determination not to accept immunizations are related not to religious one’s [sic]; but, rather, to the underpinnings of your vegan lifestyle.

Petitioner was further informed that she could commence an appeal to the Commissioner of Education pursuant to Education Law §310 within thirty days of respondent’s decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 21, 2015.

Although the petition is unclear, petitioner appears to assert that she has genuine and sincere religious beliefs that are contrary to immunization.  Petitioner seek a religious exemption for the student pursuant to PHL §2164.

Respondent contends that petitioner’s objections to immunizations are not based on sincerely-held religious beliefs.  Respondent further asserts that its determination was rational, not arbitrary or capricious, and in all respects proper.

I must first address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  

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).  Therefore, to the extent that petitioner attempts to raise constitutional issues in regard to this appeal, I decline to consider such claims.

To the extent that petitioner alleges violations of the Freedom of Information Law (“FOIL”), I note that section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Turning to 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 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 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).

After reviewing the record, I find that petitioner’s statements in her original exemption request and her petition are insufficient to establish the religious basis or origin of her beliefs (see Appeal of E.M., 55 Ed Dept Rep, Decision No. 16,918; Appeal of K.E., 48 id. 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).  In her petition, petitioner declares that her children are “under my care [and] supported by ‘Aten’ under the guidance of ‘Maat’ and in the permanent understudy of ‘Neter.’”  Petitioner further declares that her children are “over three and under twenty-one years of age and [have not] received a high school diploma by way of the right to the assertion of holistic medicine without being construed and akin to Placebo effect.”  Other than these statements, petitioner has not explained the nature of her religious beliefs.  Instead, petitioner quotes various legal texts, treatises and statutes but fails to explain how this information reflects a sincerely-held religious opposition to immunization.  Accordingly, I find that respondent’s determination was rational, reasonable and consistent with law.[2]

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 [EDNY 2010], aff’d 500 Fed Appx. 16 [2d Cir. 2012], cert. denied 133 SCt 1997 [2013]).  The record as a whole lacks evidence of sincerely-held religious objections to immunizations.  Accordingly, I find that petitioner has failed to carry her burden of demonstrating 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.

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