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Decision No. 17,429

Appeal of E.H., on behalf of her children G.H. and J.H., from action of the New York City Department of Education regarding immunization.

Decision No. 17,429

(July 5, 2018)

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

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE” or “respondent”) that her children, G.H. and J.H. (“the students”), are not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2015-2016 school year, the students were enrolled in respondent’s school district.  On October 25, 2015, petitioner submitted a letter seeking a religious exemption from immunization on behalf of the student G.H.  Petitioner stated that “immunizations are in conflict with my religious tenets” including her belief that some vaccines may be produced using aborted fetal tissue and that the practice of abortion “destroy[s] life that God gives.”  Petitioner stated that “I believe the risk for getting some diseases is less than the immunological risks associated with getting the vaccine for that disease.”  Petitioner further stated:

I believe that there is no support (according to our beliefs) for injecting chemicals, poisons, animal by products [sic] or other foreign materials into the bloodstream in order to try and prevent disease.

According to the record, although the request only concerned student G.H., respondent’s health service coordinator (“coordinator”) “construed [petitioner’s] application to encompass both [of her] children.”

By memorandum dated February 11, 2016, the coordinator requested additional information from petitioner stating:

[I]t has been determined that there is insufficient documentation to determine whether a religious exemption from immunization is warranted and that additional documentation in support of your request must be submitted.

Thereafter, respondent’s coordinator received a letter from petitioner on March 14, 2016 which further elaborated upon petitioner’s opposition to immunization. In her letter, which she submitted on behalf of both G.H. and J.H., petitioner stated:

[W]e don’t agree with putting animal by-products in the form of vaccinations in our bodies.  In many cases, research shows that there is a risk of malady by actually receiving them. We have a personal friend who has a severely autistic child they believe can be attributed to the batch of vaccines he was administered.  [S]tudies have shown that Aluminum adjuvants in the form of pediatric vaccines could be contributing to increased rates of autism spectrum disorders, in addition to other neurological complications.

Petitioner also stated that her son J.H. “has suffered from mild complications I believe of these neurotoxins including sensitivity to noise, motion and overstimulation.”  Petitioner further explained:

[W]e also do not use aluminum based anti-perspirants and eat ‘clean’.... Having suffered from Graves Disease myself, an auto-immune disorder, I am very concerned about oxidative stress, brain inflammation and immunological disorders in association with toxic exposure of various heavy metals.

By memorandum dated April 28, 2016, respondent denied petitioner’s request for a religious exemption, determining that the documentation she submitted was:

[I]nadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  (Student G.H.) has all of the required vaccines except for DTap#3, Polio#3, MMR, Hep.B#3, and varicella.  (Student J.H.) has all of the required vaccines except for the Tdap booster.

The memorandum also informed petitioner of DOE’s appeal process and notified her that if her appeal was denied, she could commence an appeal to the Commissioner of Education pursuant to Education Law §310.

Petitioner appealed the determination and met with respondent’s health director (“director”) on May 17, 2016.  The record indicates that during the meeting, petitioner was asked questions about her opposition to immunizations and the religious basis for her beliefs. In response, petitioner acknowledged that her children had received vaccinations in the past and that her religious beliefs concerning immunizations changed because she had “evolved within [her] religious beliefs” and has “learned more about [her] religious teachings and the importance of upholding its values.” Petitioner also stated:

[A]ll of the ingredients in vaccinations are not fully known and some have been found to have ill effects. I don’t want to inject my children with vaccines that have unknown substances.

Petitioner further stated that “[s]ince the mid 2000’s I have shared custody [with the students’ father] and [the students] go back and forth to Texas.  Texas has approved their religious exemption.”[1]

By memorandum dated May 26, 2016, respondent denied petitioner’s appeal. The memorandum also informed petitioner that she could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that during the appeal process, the students would not be permitted to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 16, 2016.[2]

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs and seeks a determination that the students are entitled to a religious exemption from the immunization requirements of PHL §2164.

Respondent contends that petitioner failed to specify the precise nature and origin of her beliefs sufficient to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper. 

I must first 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 A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319). Therefore, to the extent that petitioner attempts to raise constitutional issues in this appeal, I decline to consider such constitutional claims.

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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

The appeal must be dismissed.  PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, PHL §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 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). 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 documentation (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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely-held religious beliefs. At the outset, petitioner partially relies upon the fact that she was previously granted an exemption from immunization “for reasons of conscience” from the students’ school in Texas.  However, petitioner’s reliance on a previous exemption granted in Texas 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).  While the record contains a May 2012 letter from J.H.’s school nurse in Texas informing petitioner that such exemption was “about to expire,” the record indicates only that such exemptions may be granted in Texas based on a signed and notarized affidavit indicating an objection to vaccines(s) “for reasons of conscience, which may include a religious belief.”  Nevertheless, it is clear from the record that the bases upon which immunization requests may be granted under Texas law are different from those permitted under New York State law and under these circumstances, respondent must determine whether the student qualifies for a religious exemption pursuant to the requirements of PHL §2164(9) (see e.g. Appeal of a Student With a Disability, 56 Ed Dept Rep, Decision No. 16,968; Appeal of S.B., 48 id. 332, Decision No. 15,875). 

According to the record, although respondent’s coordinator considered the students’ prior immunization history as one factor in denying petitioner’s religious exemption request, petitioner explains in her petition that:

[J.H.] received more vaccinations than his sister because we were not privy to this information regarding what ingredients the pharmaceutical companies use to derive vaccines in addition to forming a set of Christian beliefs that forbids such practices.  We became active members of Sojourn Church in Carrollton, TX from 2004 until 2009.  We were able to study scriptures during that time that helped form our Christian faith and belief in the Holy Scripture. Therefore, after [G.H.] received her last batch of vaccinations in August 2004, we no longer continued the practice of vaccinating our children under the current available vaccines which do not offer immunizations that do not compromise our beliefs.

Courts have consistently held that the fact that petitioner’s children were 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, cert. denied, 133 SCt 1997).  Therefore, I find that, while petitioner provided sufficient information to establish the basis for her change of heart regarding the students’ immunizations, she has not, however, met her burden of proof in establishing that her opposition to immunization stems from sincerely-held religious beliefs or that respondent’s denial was arbitrary and capricious.

I find that petitioner’s general references to her Christian faith and beliefs are insufficient to establish the religious basis or origin of her opposition to immunization (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).

I further find that petitioner’s objections are primarily medical in nature.  In petitioner’s March 14, 2016 submission, which petitioner represented as the “[r]eason” for her request for a “[c]onscience [e]xemption,” petitioner indicated that the child of a “personal friend” became severely autistic because of the “batch of vaccines” he received.  Petitioner elaborated that “studies have shown that aluminum adjuvants in the form of pediatric vaccines could be contributing to increased rates of autism spectrum disorders....”  Petitioner further asserted that J.H. suffered from “a sensitivity to noise, motion, and overstimulation” due to “neurotoxins” in vaccines which he received.  Additionally, petitioner indicated that she and the students abjure “aluminum-based antiperspirants” and maintain a “clean” diet.  Therefore, on this record, petitioner has failed to establish that her opposition to vaccination is primarily religious in nature (see Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,158).

Moreover, I note that, petitioner’s additional objections to vaccination appear to be partially grounded in her opposition to abortion and, by extension, fetal tissue obtained from abortions.  In her petition, petitioner asserts that she “cannot participate or condone activities or products that violate this belief....”  Petitioner also states “we believe we are not just a clump of cells or tissue in the womb, we are the very life of God from conception” and “Life is sacred. Scripture condemns the killing of innocents.”  In support of her position, petitioner cites to various Biblical verses. Petitioner further states:

The specific vaccinations required including DPT/Dt/Td, DTap/Tdap, OPV (Polio), MMR, HBV, and Varicella, all include some form of either fetal bovine serum, calf bovine serum, bovine extract, human cell cultures, monkey kidney cells, chick embryo cell culture, human diploid cells, or other fetal or animal cultures or samples. 

Petitioner also attaches a chart from the Centers for Disease Control and Prevention (“CDC”) as an exhibit to the petition to support her claim that various vaccines contain such ingredients.  However, I find that petitioner’s general statements and citations to Biblical verses without further elaboration are insufficient to establish the religious basis or origin of her beliefs in this regard (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,954; 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).  Although petitioner cites to Biblical texts and religious materials, she fails to further elaborate and explain and specify the precise nature and origin of her beliefs in her own words (c.f. Appeal of N.I., 57 Ed Dept Rep, Decision 17,176).  Based on the general nature of petitioner’s statements in this regard and the evidence in this record that petitioner’s objection to vaccination appears to be primarily medical in nature, I cannot conclude that respondent’s denial of her exemption request was arbitrary and capricious.

Accordingly, 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.  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] While respondent does not argue that the petition should be dismissed for failure to join the students’ father as a necessary party, I note that the record in this appeal contains evidence clearly indicating that the students’ father supports petitioner’s appeal (see Appeal of a Student With a Disability, 56 Ed Dept Rep, Decision No. 16,986).

 

[2] By affirmation dated June 10, 2016, counsel for respondent indicated that respondent would not oppose petitioner’s request for interim relief and that the students would remain enrolled in respondent’s schools during the pendency of this appeal.