Appeal of B.B., on behalf of his son J.B., from action of the Board of Education of the Lewiston-Porter Central School District regarding immunization.

Decision No. 17,554

(December 20, 2018)

Webster Szanyi, LLP, attorneys for respondent, Ryan G. Smith, Esq. of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lewiston-Porter Central School District (“respondent”) that his son J.B. (“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.  According to the record, petitioner submitted a request for a religious exemption to the immunization requirements of PHL §2164 in October 2017.  Petitioner stated, in pertinent part:

In compliance with NYS law, we herewith submit the written statement to exempt our child [the student] from all immunization requirements and the Mantoux (PPD) Tuberculin Test because we hold genuine and sincere personal beliefs that prohibit those procedures.  We object to the vaccination of our child as it is contrary to our conscientiously held religious beliefs and practices and violates the free exercise of our religious principles.

Petitioner also stated that: “[i]t is a violation of the Establishment Clause of the First Amendment to the U.S.  Constitution for any institution representing government to inquire into the details of one’s religious beliefs for the purpose of determining the truthfulness or genuineness of said beliefs.”  Petitioner did not otherwise describe the basis of his religious beliefs or his objections to vaccination.

By letter dated October 17, 2017, the principal of the district’s primary education center (“primary education center principal) stated that it was unclear whether petitioner’s objection was based on genuine and sincere religious beliefs.  The primary education center principal further determined that she did “not have sufficient information upon which to grant the request” and requested a meeting with petitioner to “give [him] an opportunity to explain [his] religious belief(s) that form[ed] the basis for [his] opposition to immunizations.”  The primary education center principal requested that petitioner contact the district office to set up a meeting and stated: “[p]lease bring with you to the meeting any supporting documentation or other information that may help further clarify or explain your opposition to immunizations and the religious basis of that opposition.”

On October 25, 2017, petitioner and his spouse met with the principals of the district’s primary and intermediate education centers (collectively, “principals”) and a district secretary.  According to the record, petitioner was asked to explain “in [his] own words why [he was] requesting the religious exemption.”  The secretary who attended the meeting took notes, copies of which are part of the record on appeal.  The record reflects that, during this meeting, petitioner largely repeated the information contained in his original exemption request.  Petitioner also read a series of character reference letters and recommendations dated between 1991 and 2008 from friends, community leaders, business associates, co-workers and neighbors which appear to have been generated in connection with a custody dispute involving petitioner’s children.  Petitioner also submitted a letter from his bishop attesting to petitioner’s “fine character.”  The secretary who attended the meeting took notes, copies of which are part of the record on appeal.

 By letter dated November 3, 2017, the principal notified petitioner that his exemption request was denied because:

It was found that a description of the religious basis or origin of your beliefs was not sufficient in a religious exemption determination.  A reliance on character references is not sufficient in a religious exemption determination.

Petitioner was further informed that “if we do not receive proof of immunization by November 21, 2017, your child will be denied admission to our schools on November 27, 2017.”  

In a letter to the primary education center principal dated November 18, 2017, petitioner requested the opportunity “to resubmit the religious exemption request because, among other reasons [he] misunderstood the process for obtaining a religious exemption.”  Specifically, petitioner asserted that he mistakenly believed that his mere assertion that he held religious beliefs would sufficiently demonstrate such religious beliefs.  Petitioner specifically characterized his original request as “boilerplate” and requested permission to submit an additional statement of his religious beliefs.

In an email to petitioner dated November 27, 2017, the primary education center principal indicated that she had sent petitioner a letter by certified mail on November 21, 2017.[1]  She further indicated that if petitioner commenced an appeal pursuant to Education Law §310, the student would be allowed to attend respondent’s schools during the pendency of this appeal.  This appeal ensued and petitioner’s request for interim relief was determined to be moot.

Petitioner admits that his request for a religious exemption “failed to explain his religious beliefs which form the basis for his objection to immunizations.”  However, petitioner maintains that he did not understand what information he was supposed to furnish to the district and mistakenly thought he only had to prove his “credibility with regard to the truthfulness and sincerity of ... having [religious] beliefs ....”  Petitioner requests that this matter “be remanded [] with orders that [r]espondent accept [] a statement from [p]etitioner that explains the religious reasons he has for refraining [from] or discontinuing vaccines ....”

Respondent alleges that the petition must be dismissed on various procedural grounds as well as on the merits. Specifically, respondent contends that the appeal must be dismissed as untimely, for failure to join necessary parties and for improper service.  Respondent also contends that its determination to deny petitioner’s religious exemption request was rational, not arbitrary or capricious, and in all respects proper.

I must first address several preliminary matters.  One of petitioner’s claims below was that he was not required to explain his religious beliefs based upon his First Amendment rights.  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, I decline to consider such claims.

Next, 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.

Respondent also argues that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Respondent argues that the appeal is untimely because it was commenced more than 30 days after petitioner’s request was denied on November 3, 2017.  The record is unclear as to when petitioner received the November 3, 2017 denial letter.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, petitioner’s service of the petition on December 7, 2017 was within the 30-day time limitation.  Therefore, petitioner commenced the appeal in a timely manner and respondent’s argument to the contrary is without merit.

Respondent next argues in its verified answer that the appeal should be dismissed for failure to “properly serve the [d]istrict and/or any other respondent identified in the ... [p]etition.”  Respondent specifies in its memorandum of law that it seeks dismissal of the appeal as against the principal of the primary education center and the superintendent because they were neither identified in the caption of the petition nor personally served.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  

Here, while petitioner identified the principal of the primary education center and the superintendent under the heading “[r]espondents” in the body of his petition, he did not name them in that caption, seeks no relief as against them, and did not serve them with a copy of the appeal.  Therefore, the appeal is dismissed as against them (see Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272).  Thus, to the extent the petition could be construed as presenting claims against the principal of the primary education center or the superintendent individually, I agree with respondent that any claims against these individuals must be dismissed as they were not joined.[2]

As indicated above, petitioner appears to concede that the materials which he submitted to respondent did not support the granting of a religious exemption.  Nevertheless, petitioner requests that the appeal be remanded so that he may submit, and respondent may consider, a more fulsome statement of his religious beliefs.  I decline to do so because the evidence in the record shows that petitioner was afforded a full and fair opportunity to explain his beliefs both in writing and at a meeting with the principals of the primary and intermediate education centers. 

In this respect, the principal of the primary education center’s October 17, 2017 letter indicated that the meeting would provide petitioner “an opportunity to explain [his] religious belief(s) that form[ed] the basis for [his] opposition to immunizations.”  Petitioner was further instructed to “bring ... to the meeting any supporting documents or any other information that may help to further clarify or explain [his] opposition to immunization and the religious basis of that opposition.”  According to the record, the meeting was held on October 25, 2017 and lasted over one hour.  The principal of the primary education center indicates in an affidavit that she specifically asked petitioner and his spouse at the meeting “to explain what religious principles serve[d] as a basis for their opposition to immunizations.”  In response, according to the primary education center principal, petitioner and his spouse “identified no religious principles or beliefs, let alone a connection between those principles or beliefs and their objection to immunizations.” 

Petitioner does not allege, and there is no information in the record to suggest, that he was not provided a full and fair opportunity to explain the basis of his religious beliefs to respondent.  Petitioner instead argues that, when the principal of the primary education center realized petitioner’s misunderstanding of the process, she should have provided him “with guidance on what issues should be addressed and the approximate length and amount of detail that would make [the written statement] sufficient.”  There is no basis in law or regulation which would require respondent to take these actions which would, essentially, require respondent to make petitioner’s case for him. 

While I have remanded appeals concerning denials of religious immunization requests, those appeals are distinguishable as, in those appeals, a parent did not receive a full and fair opportunity to present their claims at the local level (see Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319 [appeal of denial of religious immunization request remanded where attorney rendered decision and provided no reasoning for denial]; Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,491 [appeal of denial of religious immunization request remanded where parent submitted approximately 50 pages of information below which respondent did not appear to have fully considered]).  Therefore, I decline to remand the instant appeal based upon petitioner’s conclusory assertion that he misunderstood the nature of the religious exemption process.[3]

To the extent petitioner requests that I overturn respondent’s denial of his October 2017 exemption request, which he appears to concede is inadequate, the appeal must be dismissed.  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 careful consideration of the entire record, I find that petitioner has failed to meet his burden of establishing that his opposition to immunization stems from sincerely-held religious beliefs.  Specifically, I find that petitioner’s statements in his original exemption request, during the October 25, 2017 meeting and in his petition are insufficient to establish the religious basis or origin of his beliefs (see Appeal of E.M., 55 Ed Dept Rep, Decision No. 16,918; 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).  Petitioner’s written statement indicates, in conclusory fashion, that petitioner “hold[s] genuine and sincere personal religious beliefs” against immunization.  The statement further asserts that petitioner cannot be required to expound upon his beliefs pursuant to his First Amendment rights.  I find that petitioner has not met his burden of proof based upon these conclusory statements.

Similarly, the evidence in the record concerning the October 25, 2017 meeting does not support a finding that petitioner holds genuine and sincerely-held religious beliefs opposed to immunization.  The notes taken by the secretary reflect that petitioner made general statements about prayer and a connection to God during the meeting.  As stated above, general statements about God, without more, are insufficient 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). 

Therefore, on this record, I cannot find respondent’s determination that petitioner failed to demonstrate that he holds genuine and sincerely-held religious beliefs in opposition to immunization to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for a religious exemption on the student’s behalf at any time and that respondent must evaluate any such application – including any evidence petitioner may submit – in accordance with the requirements of PHL §2164(9) (see Appeal of D.H., 52 Ed Dept Rep, Decision No. 16,425).

THE APPEAL IS DISMISSED.

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