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Decision No. 17,495

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the New York City Department of Education regarding immunization.

Decision No. 17,495

(August 30, 2018)

Chesney & Nicholas, LLP., attorneys for petitioners, Charles C. Nicholas, Esq., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Mary McKenna Rodriguez, Esq., of counsel

 

ELIA., Commissioner.-- Petitioners appeal the determination of the New York City Department of Education (“DOE” or “respondent”) that their son (“the student”) is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2017-2018 school year, the student was enrolled in respondent’s district.  On August 10, 2017, petitioners submitted a form requesting a religious exemption from immunization on behalf of the student.[1]  In this form, petitioners asserted that they “object to vaccines because we believe in and follow the Heavenly Father and the principles laid out in his word and we have deeply held belief that vaccines violate them.”  Petitioners further stated that:

Since vaccine preparation involves the use of materials of biological origin, vaccines are subject to contamination by micro-organisms.

Vaccines contain neurotoxins, hazardous substances, attenuated viruses, animal parts, foreign DNA, albumin from human blood, carcinogens and chemical wastes that are proven harmful to the human body.

Together with their religious exemption request, petitioners provided a link to the Centers for Disease Control and Prevention (“CDC”) website to support their claim that various vaccines contain such ingredients.  Petitioners’ request also included citations to various Biblical texts and verses to support their claim.

By memorandum dated August 21, 2017, respondent’s health services coordinator (“coordinator”) denied petitioners’ request for a religious exemption, determining that the documentation petitioners 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.  Specially [sic], while you cited passages of scriptures[,] you have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.

[The student] has all of the required vaccines except for DTP#4, MMR & Varicella.  You have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.

The memorandum also informed petitioners of the availability of respondent’s internal appeals process, which included an interview with respondent’s health director, and further notified petitioners that if their appeal was denied, they could commence an appeal to the Commissioner pursuant to Education Law §310.

Petitioners appealed this determination and met with respondent’s health director (“director”) on October 2, 2017.  The record indicates that during the meeting, petitioners were asked questions about their opposition to immunizations and the religious basis for their beliefs.  In response, petitioners acknowledged that the student “was vaccinated in the past but since we have found Jesus, we now know better,” and “vaccines contain aborted fetal ingredients; we are against abortion and we are against giving a healthy body something that could harm it which inherently violates scripture.”

By memorandum dated October 31, 2017, respondent denied petitioners’ appeal. The memorandum also informed petitioners that they could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310 and that, during the appeal process, the student would not be permitted to remain in school.  This appeal ensued.  Petitioners’ request for interim relief was granted on December 6, 2017.

Petitioners contend that their objections to immunizations are based on genuine and sincerely-held religious beliefs and seek a determination that the student is entitled to a religious exemption from the immunization requirements of PHL §2164. Petitioners also claim that respondent failed to provide them with specific reasons for the denial of their request, that respondent’s appeal process is flawed and that the denial was arbitrary and capricious.

Respondent contends that petitioners failed to specify the precise nature and origin of their beliefs sufficient to support a religious exemption and that its determination was neither arbitrary nor capricious.

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 petitioners complain that respondent’s consideration of their request impinged upon their constitutional rights, I decline to consider such claims.

Petitioners also submitted a reply in this matter.  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.

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:

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 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). 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).

Petitioners initially allege that the denial of their exemption request was arbitrary and capricious due to flaws in respondent’s process for considering such requests.  Petitioners claim, among other things, that respondent “directed Petitioners to proceed into a process that included a perfunctory ‘appeal interview’, as an apparent pretext to claim later that due process was observed by way of a ‘supporting documents’ request.”  Other than their conclusory statements, however, petitioners provide no support for their allegations.  Indeed, the record demonstrates that the procedure which respondent employed in this case provided petitioners the process which they are due under PHL §2164 and that respondent, in conformity with PHL §2164, considered and denied petitioners’ written request.

Although not entirely clear, petitioners appear to allege that respondent erred in failing to request additional documentation prior to denying petitioners’ request and that respondent’s appeal process is used to “avoid having to raise ‘questions that remained’” regarding parents’ religious exemption request.  I note that, while respondent may seek additional information, if deemed necessary (10 NYCRR §66-1.3[d]), respondent was not required to do so.  Indeed, as stated in guidance issued by the State Education Department (“Department”), “[m]ost requests will be able to be implemented based solely on the basis of the written statement.  [A]ny supporting documents should be requested only when questions remain about the existence of a sincerely held religious belief based on review of the parental/guardian statement.”

In this case, after the August 21, 2017 denial of petitioners’ request, respondent informed petitioners of the availability of its internal appeals process, which included an interview with respondent’s health director.  Petitioners availed themselves of this opportunity.  While petitioners complain that respondent’s interview process is “perfunctory” and a “veneer of due process,” petitioners have not demonstrated that respondent’s process was inconsistent with PHL §2164 or the Department’s guidance.  Therefore, on this record, I find that petitioners have failed to carry their burden with respect to this claim.

With respect to their claim that respondent failed to provide a sufficient explanation as to why it denied their request for a religious exemption, petitioners rely on guidance from the 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.” 

As described above, both the August 21, 2017 and the October 31, 2017 memoranda essentially state that petitioners failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  Commissioner’s decisions have recognized that a school’s use of form letters is not per se unreasonable, and that in a school district of respondent’s size and organizational complexity, modified form letters may be an efficient and effective means of communicating with parents in certain situations (Appeal of J.T. and L.T., 57 Ed Dept Rep, Decision No. 17,181; Appeal of a Student with a Disability, 57 id., Decision No. 17,169; Appeal of L.S., 50 id., Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).

Further, respondent states in its answer that it found “the record as a whole did not substantiate a finding that petitioner[s] held a genuine and sincere religious belief contrary to immunizations.”  The coordinator elaborates in her affidavit that she “determined [petitioners] did not provide sufficient information to substantiate a finding that they held genuine and sincere religious beliefs in opposition to [the student’s] required immunizations” and found that their objection appeared to be based on “medical and philosophical concerns” and “suggest[ed] a personal fear and skepticism about the safety of immunizations in general.”

Upon review of the record, I find that respondent has articulated a sufficient rationale for its determination for purposes of this appeal.  Further, petitioners have had ample opportunity to respond to respondent’s reasons for its denial in this appeal and have indeed done so (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,169).  Accordingly, I will not sustain the appeal on this ground.  However, I admonish respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of a religious exemption in accordance with the Department’s guidance.

Turning to petitioners’ substantive challenges, 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 their petition, petitioners claim that their beliefs are based upon the “Rationale of ‘Faith’” and the “Rationale of ‘Blood.’”  In support of their religious exemption request, petitioners state, among other things, “your body is a temple for the holy spirit” and “[t]he idea that the blood of others shall not be consumed, or otherwise placed within our bodies, as well as mixing or diluting ones [sic] bloodstream with the blood of others, and extending to rituals and symbolism involving atonement and redemption is a requisite component of faith, leading to salvation.”

On appeal, petitioners also submit a letter dated September 12, 2017 from “Rabbi Jose de Jesus.”  The letter describes petitioners as “true and faithful believers in the Messianic Faith” and requests consideration of petitioners’ “[r]eligious and personal views on the matter ....” Respondent objects to consideration of this letter because it was not before respondent at the time it made its determination denying petitioners’ exemption request.  I note that respondent’s coordinator asserts that “this letter does not provide any additional insight into the sincerity of [p]etitioners’ religious beliefs and does not alter my conclusions as stated in the August 21, 2017 and October 31, 2017 memorandum.”  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 (see Appeal of S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439).  Indeed, while the letter generally describes petitioners as “true and faithful believers in the Messianic Faith,” with respect to immunizations it merely states that petitioners have “[r]eligious and personal beliefs on the subject of vaccinations.” 

According to the record, respondent’s coordinator considered the student’s prior immunization history, which indicates that the student was last vaccinated on December 22, 2014, as one factor in denying petitioners’ religious exemption request.  Petitioners explain in their petition that the prior vaccines were “received at a time when [they] were unaware of certain aspects associated with vaccines, which they now, quite reasonably, interpret to be proscribed by specific biblical and Messianic Believers teachings.”  The record indicates that petitioners stated in their interview with respondent’s director that they “have found Jesus and we now know better.  We are more informed and educated in the scriptures and live our lives by them” and that they have held such beliefs “since 2016.”  Although the fact that children were immunized in the past is not necessarily dispositive in determining whether parents have genuine and sincere religious beliefs Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of L.T. and J.T., 57 Ed Dept Rep, Decision No. 17,181), it is relevant to an assessment of the sincerity of parents’ 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).  On this record, I agree with respondent that petitioners have failed to sufficiently explain their change in position regarding vaccination. 

I further find that petitioners have failed to meet their burden of proving that their opposition to immunization stems from sincerely-held religious beliefs or that respondent’s denial of their request was arbitrary or capricious.  A review of petitioners’ exemption request demonstrates that their objections are primarily medical in nature.  In petitioners’ August 10, 2017 submission, petitioners stated that vaccines contain ingredients “that are proven harmful to the human body.”  Petitioners also asserted that “we are against giving a healthy body something that could harm it.”  Moreover, petitioners’ general statements and citations to Biblical verses without further elaboration are insufficient to establish the religious basis or origin of their 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 petitioners cite to Biblical texts and religious materials regarding Biblical prohibitions on mixing human and animal blood and the murder of babies and children, they fail to further elaborate, explain and specify the precise nature and origin of their beliefs in their own words (cf. Appeal of N.I., 57 Ed Dept Rep, Decision No. 17,176).

Based upon petitioners’ failure to sufficiently explain their change in position regarding vaccination, the evidence in this record indicating that petitioners’ objections to vaccination are primarily medical in nature and the general nature of petitioners’ statements regarding their religious beliefs, I cannot conclude that respondent’s denial of their exemption request was arbitrary and capricious.

Accordingly, 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. 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] The version of the form in the record is dated July 28, 2017.