Appeals of L.A. and V.A., on behalf of their daughters M.A. and V.A., from action of the Board of Education of the Elmont Union Free School District regarding immunization.

Decision No. 17,424

(June 28, 2018)

Colum P. Nugent, Esq., attorney for respondent

Elia, Commissioner.--In two separate appeals, petitioners challenge a determination of the Board of Education of the Elmont Union Free School District (“respondent”) that their children (“the students”) are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  Because these appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioners’ children attend school in respondent’s district.  Prior to the events described in this appeal, the students attended a school within the City School District of the City of New York.  According to petitioners, the New York City Department of Education approved a religious exemption request for the students.  Thereafter, petitioners moved to respondent’s district and enrolled the students in August 2015.  Respondent thereafter granted a religious exemption for the students for the 2015-2016 school year.  According to the record, respondent requested that petitioners re-submit an application for a religious exemption for the 2016-2017 school year.  By letter dated September 22, 2016, respondent’s director of pupil personnel services notified petitioners that their exemption request was denied, stating:

[I]t is the school district’s position that the personal religious beliefs of a parent must be carefully examined and must yield when the health of a child is put at risk by the parent’s conduct ... the district finds here that the statement of religious belief submitted by [petitioners] should not obviate the need to immunize their children. The statement appears to be formed in terms of religious belief in order to gain the exemption.

This appeal ensued.[1]

Petitioners assert that they have genuine and sincere religious beliefs that are contrary to immunization. Petitioners also claim, inter alia, that respondent acted arbitrarily, and was precluded from requiring petitioners “to file any additional requests for a religious exemption ... as long as [the students] remain ... in the School District.” Petitioners seek a religious exemption for the students pursuant to PHL §2164.

Respondent maintains that the denial of petitioners’ religious exemption request was proper because petitioners’ objections to immunizations are not based on genuinely and sincerely-held religious beliefs and its determination was in all respects proper. Respondent further contends that the appeal must be dismissed for improper service.

Initially, I must address two preliminary matters.  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 constitutional claims.

By letter dated January 23, 2018, petitioners submitted a letter objecting to certain information which had been requested by my Office of Counsel regarding their 2015-2016 religious exemption request and included a letter from their former counsel.  By letter dated January 29, 2018, respondent submitted additional information and clarification relative to petitioners’ 2015-2016 religious exemption request. Petitioners responded to this letter in correspondence dated January 30, 2018. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Neither party requested permission to submit these supporting papers.  Accordingly, I have not accepted or considered them in my determination.

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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). The record indicates that petitioners failed to properly serve respondent.  Section 275.8(a) of the Commissioner's regulations states that, “if a named respondent cannot be found upon diligent search,” a petitioner may serve the petition “at the respondent's residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner” Here, according to their affidavits of service, petitioners attempted to effect service upon Kevin Denehy (“Mr. Denehy”), a trustee of respondent’s school board, “by delivering to and leaving” the petition with “Mrs. Denehy, the wife of Kevin Denehy, who after a diligent search could not be located.”  The affidavits of service, however, fail to demonstrate that petitioners made any diligent attempt to personally serve Mr. Denehy.  One attempt at service at Mr. Denehy’s home does not constitute a diligent effort to serve him personally (Appeal of Cooke, et al., 56 Ed Dept Rep, Decision No. 16,759; Appeal of Boni, 41 id. 214, Decision No. 14,666; Boni, et al. v. Mills, et al., Sup. Ct., Albany Co., Special Term; Bradley, J.; January 7, 2003; judgment granted dismissing petition to review).  Nor does the record contain any evidence that petitioners made any attempt to serve respondent’s district clerk, any other trustee or member of respondent’s board of education, or respondent’s superintendent of schools or a person in the office of the superintendent who has been designated by the board of education to accept service. Therefore, service upon respondent was not made in compliance with the requirements of Commissioner’s regulation §275.8(a) and, thus, is improper (Appeal of Houdek, 47 Ed Dept Rep 415, Decision No. 15,740; Appeal of Donnelly, 33 id. 362, Decision No. 13,079). Accordingly, the appeal must be dismissed.

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

Although the appeal must be dismissed on procedural grounds, I note that petitioners retain the right to reapply for a religious exemption on the students’ behalf at any time and that respondent must evaluate any such application – including any evidence petitioner may submit – in accordance with the requirements of PHL §2164(9) and 10 NYCRR §66-1.3 (see Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,214; Appeal of D.H., 52 id., Decision No. 16,425).  In this regard, I note that the Commissioner has previously found that, where a student moved from one elementary school to another within the same district, the fact that the principal of the first elementary school had accepted the parents’ religious exemption request without further inquiry did “not constitute acceptance or validation of petitioners’... request.  Nor does it prevent respondent from conducting a separate inquiry or from ensuring compliance with the statute, especially since an initial inquiry was never conducted.  Moreover, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here ...” (Appeal of Quigley, 41 Ed Dept Rep 399, Decision No. 14,724).

Finally, I remind respondent that guidance issued by the New York State Education Department, in interpreting the requirements of 10 NYCRR §66-1.3(d), states that “the building principal ... holds responsibility for reviewing each request form and for communicating in writing with the parent/guardian regarding the request’s approval or denial” and the principal “cannot assign these duties to the designee.”  SED’s guidance also states that if a request for a religious exemption is denied, “the notification letter must contain the specific reason(s) for the denial” (see Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319). 

THE APPEAL IS DISMISSED. 

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