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Decision No. 17,552

Appeal of a L.B., on behalf of her son C.B., from action of the Board of Education of the Elmont Union Free School District regarding immunization.

Decision No. 17,552

(December 18, 2018)

Giulia Silla Miller, Esq., attorney for petitioner

Colum P. Nugent, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her son (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be sustained in part and remanded.

According to the record, upon enrolling the student in respondent’s district for the 2017-2018 school year, petitioner submitted various letters seeking a religious exemption from immunization pursuant to PHL §2164 on behalf of the student.  By letter dated June 6, 2017, respondent’s director of pupil personnel services (“PPS director”) notified petitioner that her exemption request was denied, stating:

[T]he school district views a person’s first amendment rights as inalienable. Nonetheless, it is the district’s position that the personal 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 request is denied.

Following this denial, it appears from the record that petitioner, accompanied by a lay advocate, met with respondent’s director and the school district’s attorney (“school attorney”) on September 5, 2017 to discuss petitioner’s religious exemption request.  According to respondent, after “10 to 15 minutes” the PPS director informed petitioner that the day “was an especially busy one and that neither [she nor the school attorney] had any more time.”  Respondent further indicated that petitioner could appeal respondent’s determination pursuant to Education Law §310, and that the student would be allowed to attend school during the pendency of any such appeal.

On September 8, 2017, petitioner contacted the superintendent by telephone and requested reconsideration of her exemption request and an opportunity to submit additional documentation. According to the record, the superintendent thereafter agreed to reconsider petitioner’s request and consider her additional documentary material.  

In a letter to petitioner dated October 11, 2017, the PPS director indicated that petitioner’s exemption request had been “denied on June 6, 2017.”  The letter recounted that petitioner had “indicated [she] would exercise [her] right to appeal the denial to the Commissioner of Education within 30 days pursuant to Education Law 310.  If you have not filed your appeal by October 20, 2017, you [sic] child will be dismissed from Elmont schools at the end of the school day.”  

On October 13, 2017, counsel for petitioner spoke with the school attorney by telephone.  The school attorney indicated that, if petitioner filed an appeal pursuant to Education Law §310, respondent would permit the student to remain enrolled in school during the pendency of any such appeal.

In a letter to petitioner dated October 20, 2017, the PPS director indicated that, “after reconsideration, your request for an exemption is denied.  You may appeal this decision within 30 days from the date of this letter to the Commissioner of Education, pursuant to Education Law 310.  If you have not filed your appeal by November 20,2017, you [sic] child will be dismissed from Elmont Schools at the end of the school day.”  This appeal ensued.[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.  Petitioner also claims that respondent failed to provide her with specific reasons for the denial of her request, that the appeal process respondent followed was flawed, and that respondent’s denial of her request was arbitrary and capricious. Petitioner also appears to assert that respondent’s actions violated her due process rights.

Respondent maintains that the denial of petitioner’s request for a religious exemption was rational, not arbitrary or capricious, and in all respects proper.

First, I must address two preliminary matters.  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 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.

Additionally, counsel for petitioner alleges that she and petitioner were treated disrespectfully by the school attorney during the events underlying this appeal.  The school attorney denies these allegations and submits an affidavit by the PPS director which, with respect to one alleged incident, refutes the allegations made by counsel for petitioner.  On this record, petitioner has not demonstrated that the school attorney engaged in any inappropriate conduct.  In any event, I note that an appeal pursuant to Education Law §310 is not an appropriate forum for general complaints regarding the conduct of attorneys (see Appeal of David and Susan Staniszewski, 56 Ed Dept Rep, Decision No. 16,962).

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).

Upon consideration of the entire record, I find that the appeal must be remanded based upon deficiencies with respondent’s review process which, under the circumstances, deprived petitioner of fair consideration of her immunization exemption request.  Guidance issued by the New York State Education Department (“SED”) to school districts 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.”

Initially, petitioner’s written request was both considered and denied by respondent’s PPS director – not the building principal - in a letter dated June 6, 2017 (see Appeals of L.A. and V.A., 57 Ed Dept Rep, Decision No. 17,424; Appeal of A.S., 57 id., Decision No. 17,319).  Additionally, the denial letter contained no reasoning specific to petitioner’s request and suggested that factors other than the sincerity of petitioner’s religious beliefs formed the basis of the decision.  The letter stated that “it is the 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 letter also stated that an “exemption” from immunization was viewed by the district “with great concern,” and that “[a] parent’s beliefs can place a child at risk.”  While not entirely clear, these sentences suggest that considerations other than the merits of petitioner’s religious exemption request — such as a “parent’s conduct” and whether “the health of a child [will be] put at risk — informed respondent’s determination.

While the letter contains two sentences which could be interpreted as individualized consideration of petitioner’s request, I do not find these statements specific enough to overcome the general statements in the letter.  Specifically, toward the end of the denial letter, the PPS director states that petitioner’s request “should not obviate the need to immunize [the] child” and that petitioner’s “statement appear[ed] to be formed in terms of religious belief in order to gain the exemption.”  Even assuming that these statements pertained to the merits of petitioner’s request, they do not sufficiently explain respondent’s reasoning in denying petitioner’s request (cf. Appeal of D.W. and N.W., 50 Ed Dept Rep, Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845).

Following this denial, petitioner and a lay advocate met with the PPS director and the school attorney to discuss the denial of her exemption request.  It is unclear from the record whether this meeting was scheduled; it is similarly unclear whether respondent has a policy for considering appeals of religious exemption request denials and, if so, whether this meeting comported with such policy.  In any event, it appears that the PPS director and school attorney did not entertain petitioner’s request for reconsideration at that time and instead informed petitioner that she could seek relief by filing an appeal pursuant to Education Law §310.

Thereafter, petitioner contacted the superintendent, who agreed to accept an additional written statement and reconsider petitioner’s request.  As indicated above, it is unclear whether respondent has a policy permitting such an appeal to the superintendent.  Petitioner then received a letter from the PPS director dated October 20, 2017 indicating that petitioner’s request had been reconsidered and denied.  It is unclear from the record whether the superintendent, the PPS director, or both considered petitioner’s request for reconsideration.  This letter was also bereft of reasoning, merely informing petitioner of the availability of an appeal pursuant to Education Law §310. 

Considering the cumulative effect of these errors, I will remand the matter to respondent so that the building principal may render a determination as to petitioner’s request and explain his or her reasoning in accordance with 10 NYCRR §66-1.3(d) and consistent with Department guidance (see Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of J.W.R. and E.R., 55 id., Decision No. 16,899).  I remind respondent that, as noted above, 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).

Finally, respondent alleges in its papers, citing Check v. New York City Dep’t of Educ. (2013 WL 2181045 [E.D.N.Y. May 20, 2013]), that one reason the PPS director denied petitioner’s appeal was that petitioner originally sought, but was not granted, a medical exemption request.  While I agree with respondent that a religious exemption request may be denied on the ground that a parent’s request is primarily medical in nature (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,495; Appeal of S.B., 39 id. 549, Decision No. 14,307), the mere fact that a parent has submitted both medical and religious exemption requests does not, without more, conclusively demonstrate that a parent lacks genuine or sincerely-held religious beliefs.  Thus, petitioner’s request for a medical exemption does not necessarily disqualify her from seeking, or obtaining, a religious exemption.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this decision and order, respondent determine whether the student is entitled to an exemption from the immunization requirements of PHL §2164 in conformity with all applicable laws and regulations and consistent and in accordance with this decision and that, in making such determination, respondent shall consider all relevant information submitted by petitioner.

END OF FILE

 

[1] Although petitioner requested interim relief in this matter, counsel for respondent indicated in an affirmation that the student would remain enrolled in respondent’s schools during the pendency of this appeal.  Accordingly, it was unnecessary to render a decision with respect to petitioner’s request for interim relief.