Appeal of S.F. and E.R., on behalf of their daughter K.F., from action of the Board of Education of the Clarkstown Central School District regarding immunization.

Decision No. 17,439

(July 9, 2018)

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

Jaspan Schlesinger, LLP attorneys for respondent, Joanna M. Caccavo, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their daughter, K.F. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

The record indicates that, during the 2015-2016 school year, the student attended a Universal Pre-Kindergarten program (“UPK”) at Prime Time Kids, operated by Child Care Resources of Rockland, Inc. (“CCRR”), which contracts with respondent to provide UPK programs to district residents.  In their petition, petitioners allege that, in 2015, CCRR approved their request for a religious exemption from immunization “working as an agent of” respondent.    

By letter dated February 2, 2016, petitioners requested a religious exemption from all immunizations on behalf of the student, who they sought to register to attend kindergarten in respondent’s district for the 2016-2017 school year.  In their exemption request,[1] petitioners stated, among other things:

God is the creator of all that we see including us, his children.  God is perfection and the creation process is perfection.  A healthy child of God is not in need of man’s concoctions.  The idea that man would inject invasive concoctions into a healthy child of God, would only serve to cast doubt upon our Creator. It has a tendency of doubting the Creator’s design and blueprint.  Vaccinations represent an interference with creation and cast doubt upon the Creator’s abilities.

While the record is unclear, it appears that petitioners thereafter met with the principal of the school at which the student would attend kindergarten, Woodglen Elementary School (“Woodglen”) on February 29, 2016. Although the parties appear to disagree as to the substance of petitioners’ answers during the meeting, the record indicates that, during this meeting, petitioners were asked questions about their opposition to immunizations and the religious basis for their beliefs.

By letter dated April 15, 2016, the principal of Woodglen denied petitioners’ exemption request, stating:

After much consideration of your written statement and what you said during the meeting, I could not conclude that you hold genuine and sincere religious beliefs opposed to immunization.  I believe that while you hold spiritual beliefs, and while your opposition to immunization seems sincere, your opposition to immunization is not religious in nature.

This appeal ensued.  Petitioners’ request for interim relief was granted on June 6, 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.

Respondent asserts 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.  Respondent further asserts that the 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 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 this appeal, I decline to consider such 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 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.

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 the student 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 a petitioner’s statements and may consider a 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).

Initially, petitioners assert that respondent failed to provide a sufficient explanation of the reasons for denying their request for a religious exemption.  In support of 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 “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.”  I find no merit in petitioners’ argument.  The principal’s April 15, 2016 letter states that petitioners failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  In this letter, the principal specifically explained why she denied petitioners’ exemption request, citing specific inconsistencies which, in the principal’s view, demonstrated that petitioners had not established sincerely-held religious beliefs that ran contrary to the practice of immunization.  Accordingly, I will not sustain the appeal on this ground. 

I also find no merit to petitioners’ contention that respondent improperly requested that petitioners submit additional information.  PHL §2164 and its implementing regulations state that respondent must make the ultimate determination on whether to grant a religious exemption.  That determination necessarily includes the ability to seek additional information, if deemed necessary (10 NYCRR §66-1.3[d]).  Therefore, upon review of the record, I find that it was appropriate for respondent to request additional information and supporting documentation from petitioners in this instance to ascertain petitioners’ religious beliefs.

Petitioners further contend, among other things, that respondent’s interview process is flawed, that their interview was “hurried” and that petitioners’ statements during that meeting “received no actual consideration.”  Petitioners also contend in their petition that, during the interview, petitioner E.R. “mistakenly, and momentarily, by the ‘slip of the tongue’ mentioned that Petitioners were not against vaccinations – a momentary mistake that was immediately corrected by [E.R.] in the seconds after said statement was uttered....”

Respondent denies these contentions and submits affidavits from the principal, health coordinator and building secretary at Woodglen to refute petitioners’ contentions.  In her affidavit, respondent’s health coordinator avers that “the meeting was informal and relaxed, and that Petitioner did not evince any discernable anxiety or seem hurried in any way.”  Furthermore, respondent’s principal avers that the meeting was “unhurried (and [petitioner] certainly made no indication, contemporaneously or afterwards, that she felt it was)” and that petitioners’ “general statements of belief lacked concreteness and did not draw sufficient connection between Petitioners’ stated religious beliefs and their opposition to immunization.”  Respondent’s principal further avers that petitioners “never made any mention at all of the prior immunizations” and petitioners’ “statement of ‘[w]e are not against vaccinations’” was “matter-of-factly stated and left uncorrected.”  While petitioners argue in conclusory fashion in their reply that respondent’s answer and affidavits merely represent respondent’s attempt to “‘grasp[] at straws’ to justify an arbitrary and capricious denial,” I find that, on this record, petitioners have failed to carry their burden of proving that respondent’s process was flawed or that respondent did not adequately consider their request.

In their petition, petitioners appear to contend that respondent erred in denying their exemption request because:

CCRR, working as an agent of [respondent], and/or [respondent] directly, was satisfied with the documentation provided by Petitioners, and confirmed – approved - Petitioners’ request for a religious exemption.

In their reply, however, petitioners assert that they cited to CCRR’s decision in their petition merely “as an example where a bonafide, neutral, third-party found the exact same request sufficient” which “should have ... caused the Principal to pause and question how another party found the very same request sufficient when she found it lacking.”  In any case, petitioners’ reliance on a previous exemption granted by CCRR in 2015 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; Appeal of Quigley, 41 id. 399, Decision No. 14,724).  I note that, although the record contains a letter from CCRR stating that the student “is currently a pre-school student,” the record does not contain a copy of CCRR’s approval letter.  Even if the record contained evidence of such approval and the basis therefor, district officials are obligated to make their own determination of whether the student qualifies for a religious exemption (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).  Therefore, the principal of Woodglen was not bound by a previous decision made by CCRR.

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.

According to the record, respondent considered the student’s prior immunization history as one factor in denying petitioners’ religious exemption request.  I have previously held that the fact that a petitioner’s child was immunized in the past 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), although it 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).  The record contains a list of vaccinations which the student received, certified by the student’s physician on February 18, 2016.  Respondent indicates that this document was provided to the nurse’s office at Woodglen several weeks after petitioners submitted their immunization request to respondent.  In their petition, petitioners assert that they previously vaccinated the student because they were “unaware of the law allowing for religious exemption.”  However, in the instant appeal, petitioners also describe a “lost period” where they explain that they were “young and somewhat headstrong” and “even arrogant” and when one “exclude[s] God” from their lives, “there is a tendency to get lost.” Petitioners further state:

[I]t was through [a] deep connection with the Lord that love and clarity returned to my life.  [L]ife became meaningful and I lived my deeper truths.

Petitioners fail to set forth when they discovered these “truths.”  Moreover, petitioners do not explain their alleged revelation in light of the fact that, as indicated above, they claim that they previously vaccinated the student because they were unaware “of the law allowing for religious exemption.”  Moreover, the principal of Woodglen elaborates in an affidavit that she was:

[W]ell aware that the fact that prior immunization is not necessarily dispositive of the genuine and sincerely religious nature of [p]etitioners’ beliefs opposing immunization, the fact that [p]etitioners did not reveal in their statement or our meeting that such immunizations were given, nor explain why they were given - in seeming contravention of their stated beliefs - struck me as an omission that was inexplicable ... and it left me with additional doubts....

On this record, where the principal met with petitioners to discuss their exemption request, I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095).  I find that petitioners have failed to sufficiently establish the basis for their change of heart regarding the student’s immunizations or to otherwise explain when their change of heart occurred relative to the student’s previous vaccinations.

In support of their exemption request, petitioners also acknowledge that they would condone medical intervention.  Petitioners elaborate that they are:

[N]ot anti-medicine or anti-doctor.  If a child of God is sick or needs assistance then I would explore all possibilities including man’s concoctions and pharmaceuticals.  I, of course, would have to pray upon it and find the truth within the situation.

Prior Commissioner’s decisions have held that the fact that petitioners 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). 

I further find that petitioners’ general statements are insufficient to establish the religious basis or origin of petitioners’ beliefs against 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). 

Petitioners assert that their appeal should be sustained in light of the “similarities of the facts” presented in Appeal of D.W. and N.W. (50 Ed Dept Rep, Decision No. 16,144).  However, that case is distinguishable on its facts from the instant appeal.  In Appeal of D.W. and N.W., the Commissioner concluded that petitioners had met their burden of proving that respondent’s determination that their objections to immunization were based on philosophical rather than religious beliefs was arbitrary and capricious.  Notably, the Commissioner explained that respondent’s executive director reviewed petitioners’ statement and rejected the exemption, stating that petitioners’ request “seems to be an expression of personal philosophy and is not at all based upon the Orthodox Jewish religion.”  However, the Commissioner found no indication in the record that respondent requested any supporting documents or other information from petitioners to further explain or clarify their religious beliefs.  The Commissioner further reasoned:

Even though respondent is in the best position to assess petitioners’ credibility, there is no indication that an assessment of credibility was made.  Instead, respondent rejected petitioners’ application as an expression of personal philosophy without further examination and as not based on an organized religion.  Moreover, there is no evidence in the record that petitioners’ concerns were actually based upon health or medical concerns or personal objections to immunizations, or that anyone disputes the sincerity of petitioners’ beliefs.

Thus, in Appeal of D.W. and N.W., the Commissioner found respondent’s determination to be arbitrary and capricious, based on the facts and circumstances presented in that appeal, which differ from those presented herein as described above.

Finally, on appeal, petitioners submit a letter from a priest who states that petitioners are “sincerely spiritual and ... actually practice their faith.”  I note that respondent’s principal avers that this letter was “never submitted to my office” and “even had I been able to consider this letter prior to my decision, it would not have changed my mind.”  I have reviewed this letter and, even assuming it was properly presented to respondent at the time the determination was made in this case, I find that its contents are not dispositive in determining whether a genuine and sincere religious belief against immunizations exists.  Indeed, while the letter generally describes petitioners as spiritual and committed to their religion, it does not refer to immunizations at all. 

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 respondent’s determination is unsupported by the record or otherwise arbitrary and capricious, or in violation of law (see Appeal of E.P. and L.P., 57 Ed Dept Rep, Decision No. 17,310; Appeal of L.L., 54 id., 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