Appeal of E.P. and L.P., on behalf of their son S.P., from action of the Board of Education of the Ramapo Central School District and Dr. Teresa Ivey, Principal of Montebello Elementary School, regarding immunization.

Decision No. 17,310

(January 24, 2018)

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

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Ramapo Central School District (“board” or “respondent board”) and Dr. Teresa Ivey, Principal of Montebello Elementary School (“respondent Ivey”) (collectively, “respondents”) that their son, S.P. (the “student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

By letter dated March 18, 2016, petitioners requested admission and a religious exemption to all immunization on behalf of the student, who was scheduled to attend kindergarten in September 2016.  Attached to the request form was a letter in which petitioners asserted that “the practice of vaccinating would contradict and violate our truthfully held religious principles and practices.”[1]

While the record is unclear, petitioners thereafter met with respondent Ivey. Although the parties appear to disagree as to the substance of petitioners’ answers during the meeting, the record indicates that during the meeting, petitioners were asked questions about their opposition to immunizations and the religious basis for their beliefs.  According to petitioners, they also asserted that “we are born whole and pure and that foreign substances of any kind, should not be given,” and that they are not opposed to medical interventions but they prefer “a more natural, proactive nutritionally-based approach.”

By letter dated May 24, 2016, respondent Ivey denied petitioners’ exemption request, stating that religious exemptions do not extend to “persons whose views are founded upon medical considerations” and that “your references to potential toxins and foreign bodies warrant a finding that your beliefs are medical in nature and not religious.”  This appeal ensued.  Petitioners’ request for interim relief was denied on July 18, 2016.

Petitioners assert that they have genuine and sincere religious beliefs that are contrary to immunization and seek a religious exemption from immunization pursuant to PHL §2164. 

Respondents assert that the denial of petitioners’ request for a religious exemption was proper because petitioners’ objections to immunizations are not based on genuine and sincerely-held religious beliefs, but rather are based on medical, 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. Respondents also contend that the petition does not contain the notice required by 8 NYCRR §§275.11 and 276.1.

I must first address the procedural issues.  In his affidavit in opposition to petitioners’ request for interim relief, respondents’ attorney asserts that the notice of petition does not comply with §§275.11 and 276.1 of the Commissioner’s regulations.  However, petitioners’ affidavit of service indicates that both the notice of petition and the petition were served on respondents, and the copy of the petition filed in my Office of Counsel contains the notice required by 8 NYCRR §§275.11 and 276.1.  Other than their attorney’s conclusory assertion, respondents submit no evidence to support this claim and I will not dismiss the petition for lack of notice.

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 petitioners attempt to raise constitutional issues in regard to this appeal, I decline to consider such claims.

Together with their petition, petitioners submit a document entitled “Questions Related to Immunization Exemption,” which petitioners appear to assert is respondent Ivey’s transcription of the actual questions asked and answers given during the interview.  In their petition, petitioners appear to contest the accuracy of “the principal’s transcription” of their responses to questions regarding their sincerely-held religious beliefs during their meeting with respondent Ivey.  In this case, while respondents deny petitioners’ allegations in this regard, they do not raise a specific objection to the purported transcription.  I also note that, while the record contains an affidavit from respondent Ivey, such affidavit does not address the interview or the purported transcription submitted by petitioners herein.  Therefore, while I have considered this information as part of the record in this case, I have weighed it accordingly (see e.g. Appeal of N.C., 55 Ed Dept Rep, Decision No. 16,805; Appeal of a Student with a Disability, 52 id., Decision No. 16,491).

I find no merit to petitioners’ contention that respondent Ivey improperly requested additional information.  PHL §2164 and the applicable regulations state that the principal or person in charge of the school must make the ultimate determination on whether to grant a religious exemption.  This determination includes the ability to request supporting documents, if deemed necessary (10 NYCRR §66-1.3[d]).  Accordingly, I find that it was appropriate for respondent Ivey to request additional information and supporting documentation, including a meeting, to seek clarification and ascertain petitioners’ religious beliefs based upon petitioners’ one-sentence description of their religious exemption request in their original March 18, 2016 submission.

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 petitioners qualify for a religious exemption for their son 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).  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 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 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).

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.

In support of their immunization request, petitioners contend that that they would “prefer other treatments first” before seeking medical intervention. In this regard, I note that the fact that a 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).    

Petitioners also contend that although petitioner L.P. has two children from a previous marriage who have been immunized, the student has never received immunizations.  Petitioners further explain that petitioner L.P. “was not included in the decisions to vaccinate his older children.”  The fact that a 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 FSupp 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 SCt 1997).  Nevertheless, I find that while petitioners provided sufficient information to establish the reason the student’s older siblings have been vaccinated, they have not, as described below, met their burden of proof in establishing that their opposition to immunization stems from sincerely-held religious beliefs or that respondents’ denial of their request was arbitrary and capricious. 

In support of their exemption request, petitioners state in their petition:

G-d created our bodies with an immune system, that immune system does not lack vaccinations; G-d created us perfectly.  To vaccinate shows a lack of faith in G-d’s design; it would mean that we mistrust G-d or in some way, he made a mistake.  This is a sacrilegious idea that the principles of our religious beliefs will not and cannot accept.

Petitioners further state:

As an effort to protect this holy temple, we provide for our family pure foods. Foods that contain little to no processed ingredients, we seek non-GMO products as well as that [sic] were not produced using preservatives or grown using pesticides or fertilizers.

On appeal, petitioners also submit two letters from their Rabbis, one dated June 21, 2016 and the other undated.  I note that respondent Ivey avers that neither letter was presented to her until “long after” the May 24, 2016 denial of petitioners’ exemption request.  The letters describe petitioners’ “deep commitment to religious practices” and state that petitioners are “both upstanding human beings with a strong devotion to their faith” and are “wonderful devoted and loving parents.”  In addition, one of the letters further states that, “[a]s Jews, we believe each person is created in the ‘image of G-d’ meaning our bodies are created the way G-d intended as whole and perfect” and:

[W]e are introducing a disease or unhealthy condition into our bloodstream that could cause the very illness we are trying to fight.  Although the chances of this tragedy are minimal, the parents of children who have suffered this outcome wish they had made a different decision when they were able.

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’ statements generally refer to the perfection of God and/or the immune system which, as noted above, are insufficient by themselves to demonstrate a sincerely-held religious belief. Accordingly, I find that respondents’ determination was rational, reasonable and consistent with the law.

While the record reflects that petitioners may sincerely object to immunizations, the crux of the issue is whether the reasons for their 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 petitioners have failed to demonstrate that their 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 (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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