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Decision No. 17,530

Appeal of E.A., on behalf of her son J.F., from action of the Board of Education of the New York City Department of Education regarding immunization.

Decision No. 17,530

(October 31, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, J.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 student attended respondent’s district during the 2016-2017 school year.  By letter dated December 19, 2016, petitioner sought a religious exemption from immunization pursuant to PHL §2164.

By memorandum dated March 10, 2017, the health service coordinator (“coordinator”) in respondent’s Office of School Health denied petitioner’s request, stating that “the documentation you submitted is inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  Specifically, the memorandum stated that petitioner had “failed to provide documentation which explain[ed] why prior vaccinations did not violate [her] religious beliefs.”  Further, the memorandum indicated that “[the student] has all of the required vaccines, except for the Tdap booster.”  The memorandum provided information about how to appeal the determination.  Petitioner appealed the determination by requesting an interview with one of respondent’s health services directors.

Petitioner met with one of respondent’s health services directors (“director”) on March 29, 2017.  The record contains a copy of a form containing the questions posed to petitioner during this meeting and petitioner’s hand-written responses to the questions.

By memorandum dated April 4, 2017, the coordinator denied petitioner’s appeal, stating that the “documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization,” and that “[y]ou have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.”  This appeal ensued.  Petitioner’s request for interim relief was granted on April 22, 2017.[1]

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

Respondent contends that petitioner’s claimed objections to immunizations are not based on genuine and sincerely-held religious beliefs.  Specifically, respondent argues that petitioner’s concerns are primarily philosophical, health-based and generic.  Respondent additionally asserts that the student was previously vaccinated and argues that petitioner failed to adequately explain her change of position.  Respondent contends that its determination was rational, not arbitrary or capricious, and in all respects proper.

First, I must address a procedural matter.  Petitioner 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 or evidence 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, proof of immunization against certain diseases is generally required for a child to be admitted to school (PHL §2164[6]).  However, evidence of immunization is not required if a child’s parent or guardian holds genuine and sincere religious beliefs contrary to the mandated immunizations (PHL §2164[9]).

The determination of whether a petitioner qualifies for a religious exemption requires careful consideration of two factors: whether his or her purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (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 District, 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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of T.R., 57 id., Decision No. 17,329; Appeal of H.A., 57 id., Decision No. 17,215).  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 the child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of the 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 the parent or guardian’s statements and may consider the parent or guardian’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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of D.G. and B.L., 57 id., Decision No. 17,345; Appeal of T.R., 57 id., Decision No. 17,329).

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).

Here, upon careful consideration of the entire record, I conclude that petitioner has failed to meet her burden of proving that her objections to immunizations are religious in nature.  The primary basis for respondent’s denial of petitioner’s request for a religious exemption was that petitioner failed to specify the precise nature and origin of her beliefs against immunization and, in particular, to provide documentation which explained why prior vaccinations did not violate her religious beliefs.  In its answer, respondent argues the petitioner’s statement about immunizations containing chemicals, neurotoxins and other foreign substances demonstrates that her opposition to immunizations is primarily motivated by health or philosophical concerns.  Respondent also argues that petitioner’s statements that she does not oppose medical treatment and her attempted distinction between curative medical intervention and preventive medical intervention indicate that her primary concern is with the perceived health risks of immunization.

First, petitioner’s single statement in explaining her religious objections that vaccines “[c]ontain chemicals, neurotoxins and other foreign substances which interfere with the natural functions of our metabolism” does not establish, in and of itself, that her objections to immunization are health-related or philosophical (see Appeal of N.A., 58 Ed Dept Rep, Decision No. 17,458).  Similarly, petitioner need not oppose medical treatment per se to qualify for a religious exemption but must assert only that she believes in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of N.A., 58 Ed Dept Rep, Decision No. 17,458; Appeal of T.R., 57 id., Decision No. 17,329).  Here, petitioner claims to have a religious belief against “invasive medical procedures” on a healthy person, and I am not persuaded that the fact that she does not claim to have a religious objection to reactive or curative medical treatment establishes that her primary concern is with the perceived health risks of immunization.

Petitioner further asserts, in her written responses to the interview questions, that she believes in medical intervention when treatment is to cure an injury or sickness, that she has had x-rays and that neither she nor her son has had a blood transfusion, though she would have no religious objection to a transfusion if medically necessary.  Petitioner also indicates in her petition, for the first time, that she has not had a colonoscopy, which she characterizes as an invasive procedure, and that she sustained a triple proximal humerus fracture which, upon her physician’s advice, was successfully treated without surgery.  Respondent denies knowledge or information sufficient to form a belief as to the truth of these allegations, and there is no evidence that petitioner’s claims regarding a colonoscopy and fracture were raised with respondent prior to its final decision denying the request for an immunization exemption.  In any case, none of these alleged examples of petitioner’s adherence to her purported religious beliefs demonstrate the sincerity of petitioner’s religious beliefs against proactive medical interventions because petitioner has not provided any evidence to corroborate that her refusal to submit to such procedures has been based on religion.  All that is contained in this record are a series of general, conclusory assertions about petitioner’s religious beliefs, without corroboration of her allegations that she consistently declines to have proactive treatments for herself and her son.

Moreover, on this record petitioner has failed to sufficiently explain the student’s prior record of immunizations.  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 a petitioner’s child’s previous record of immunization is relevant to an 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 App’x 16, cert. denied, 133 SCt 1997; Appeal of S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439), 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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of B.R. and M.R., 50 id., Decision No. 16,250). 

Petitioner admitted in her written statement originally submitted with her request for a religious exemption that her son received all of his vaccinations through age five.  She asserts that her mother died when her son was six years old and that the loss affected her deeply, “leading [her] to search for a deeper understanding of [her] faith and God’s will.”  In her written responses to the interview questions, petitioner asserts that “I have held this belief for the past eight years since my mother passed away.”  However, neither the petition nor petitioner’s written submissions to respondent contain an adequate explanation of why that event, while clearly traumatic, would have triggered a shift to a religious belief against invasive medical treatment including immunizations.  Thus, I find that petitioner has not established that respondent’s determination on appeal that petitioner had not provided “documentation which explains why prior vaccinations did not violate your religious beliefs” was arbitrary and capricious based on the information petitioner had submitted to respondent.

I further find that petitioner’s general statements concerning the perfection of the human body and the immune system are  insufficient to establish genuine and sincere religious beliefs against immunization (see 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).  Petitioner states that “God made human beings, perfect as we are” and that “God gave us an immune system, which fights disease and protects us against pathogens.”  Petitioner further states that vaccines:

[C]ontain chemicals, neurotoxins and other foreign substances which interfere with the natural functions of our metabolism – systems which God, in his divine wisdom, created for our own self-preservation.

Petitioner further states that “[v]accinations are a manipulation of our God-given immune system” and, thus, “against God’s will.”

Petitioner expressed similar sentiments in her written responses to the interview questions.  In response to the prompt “[p]lease explain in your own words why you are requesting this exemption,” petitioner wrote:

God gave us an immune system which fights disease and protects us against pathogens.  Immunizations tamper with our God-given immune systems.

While I do not doubt that petitioner is opposed to immunizations, I cannot find on this record that these general statements regarding the perfection of God and/or the immune system satisfy petitioner’s burden to demonstrate that her opposition to immunization is based upon sincerely-held religious beliefs (see Appeal of E.P. and L.P., 57 Ed Dept Rep, 17,310).  While petitioner asserts in her written responses to the interview questions that she is opposed to “all immunizations and invasive medical procedures imposed upon the healthy,” the only explanation of the source of her belief is a general statement that “[m]y religious beliefs are based on doctrine [sic] of both Catholicism and Buddhism.”  As respondent determined below, petitioner failed to sufficiently specify the precise nature and origin of her beliefs to establish a genuine and sincerely-held opposition to immunizations.  Ultimately, the crux of the issue is whether petitioner’s reasons for opposing immunization 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).  I find that, on this record, 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 (see Appeal of E.P. and L.P., 57 Ed Dept Rep, 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 address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent’s counsel indicated in an affirmation that respondent did not oppose petitioner’s request for interim relief.