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Decision No. 17,565

Appeal of D.W., on behalf of his daughter A.W., from action of the Superintendent of the East Hampton Union Free School District regarding immunization.

Decision No. 17,565

(January 10, 2019)

Law Offices of Daniel Belano, Esq., attorneys for petitioner, Daniel Belano, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the superintendent of the East Hampton Union Free School District (“respondent”) that his daughter, A.W. (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

Petitioner registered the student in respondent’s district on March 22, 2017.  In a letter dated June 2017, the elementary school nurse (“school nurse”) informed petitioner that the district lacked documentation that the student had undergone a physical examination and received the following required immunizations: DTAP #5, Polio #4, and Varicella #2.  

After sending this letter, the district received a copy of the student’s immunization record from the student’s physician on or about August 6, 2017.  The immunization record showed that the student had received 23 required vaccinations and confirmed that the student had not received DTAP #5, Polio #4, and Varicella #2.

On August 7, 2017, the school nurse emailed petitioner’s spouse and asked if she could provide the school with the “physical/immunization appt. date.”  Petitioner’s spouse thereafter contacted the school nurse by telephone and informed her that “the student has been having sinus issues” and that her physician did not want her to receive the required immunizations at that time.  The school nurse informed petitioner’s spouse that the district required a note from the physician indicating why the physician believed the student could not receive the immunizations and when, in her opinion, the student could receive such immunizations.  Petitioner’s spouse agreed to provide this information.

In an email to petitioner’s spouse dated August 15, 2017, the school nurse indicated that she had not received the required information from the physician.

In an August 18, 2017 medical prescription sent by facsimile, the student’s physician indicated that the student had “an appointment scheduled for September 5 at 3:10 PM in which the required vaccines for school year 2017-2018 will be administered.”

On September 6, 2017, the student’s physician’s office contacted the school nurse by telephone and informed her that petitioner’s spouse had cancelled the student’s appointment for September 5, 2017 and that the student had no scheduled appointments to receive immunizations.  Later that day, petitioner’s spouse “confirmed” that she cancelled the appointment and stated that she had no intention of having her daughter receive the required immunizations.

On September 6, 2017, respondent received a letter dated September 1, 2017 in which petitioner and his spouse sought a religious exemption from the immunization requirements of PHL §2164.  In this letter, petitioner and his spouse asserted as follows:

As parents, based on our personal religious beliefs, we object to the following vaccinations, including but not limited to, Dtap/DPT, Hib, Tetanus, MMR, Polio and Varicella for our child .... Our child’s body is the temple of God. Our family’s personal religious beliefs prohibit the injection of foreign substances into our body. To inject into our child any more substances which would alter the state into which she was born would be to criticize our Lord and question His divine omnipotence. 

Petitioner and his spouse further stated that “[o]ur personal religious beliefs include our obedience to God’s law, the Holy Bible, and we believe that we are responsible before God for the life and safety of our child, created by God.”[1]

Petitioner and his spouse were thereafter provided with a copy of the New York State Education Department’s (“Department”) “Request for Religious Exemption to Immunization” form which, among other things, identified examples of additional supporting documentation which parents may provide in support of religious exemption requests.

In a letter dated September 7, 2016, the district’s director of pupil personnel services (“PPS director”) requested that petitioner and his spouse attend an “immunization hearing” on September 11, 2017 so that the district could “get a better understanding of your beliefs and how they pertain to immunization.”  

The record indicates that, on September 11, 2017, petitioner and his spouse met with the elementary school principal, the school nurse, the PPS director, a school social worker, and an attorney representing the school district.  At this meeting, petitioner and his spouse were asked questions about their opposition to immunizations and the religious basis for their beliefs.

In a letter from the PPS director dated September 18, 2017, respondent denied petitioner and his spouse’s exemption request, stating that “[a]fter due deliberation, it is our finding that your sudden abrupt change in religious beliefs in regard to immunization is not credible, especially when considered in conjunction with your willingness to schedule an appointment for immunization as recently as August 18, 2017.”  This appeal ensued.  Petitioner’s request for interim relief was denied on October 19, 2017.

Petitioner asserts that he has genuine and sincere religious beliefs that are contrary to immunization and seeks a religious exemption from immunization pursuant to PHL §2164.  Petitioner specifically contests respondent’s determination that he and his spouse were not credible, arguing that “no one has even considered the fact that [his religious beliefs] have been my beliefs from my entire life ....”  Petitioner also objects to the presence of the school district attorney at the September 11, 2017 meeting and argues that he was not informed that he had a right to be represented by counsel.  Petitioner additionally asserts that he did not fully understand the discussion at the meeting because “[E]nglish is my second language, my first language being [P]olish.”

Respondent asserts that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objections to immunizations are not based on genuine and sincerely-held religious beliefs.  With respect to credibility, respondent argues that local school officials properly found that petitioner and his spouse were not credible.  Respondent also contends that it informed petitioner and his spouse that they could be represented by counsel at the September 11, 2017 meeting, and that there was no evidence presented that petitioner or his spouse had difficulty understanding, or communicating in, English at such meeting.

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).

First, although not entirely clear, petitioner appears to argue that it was unfair that the school district attorney attended the September 11, 2017 meeting but that he did not have an opportunity to secure an attorney.  The PPS director indicates that the district registrar informed petitioner and his spouse on September 6, 2017 that, at the September 11, 2017 hearing, “the school district’s attorney would participate via teleconference, and ... the parents had the opportunity to be represented by counsel.”  The PPS director further indicates in an affidavit that “[a]t no time before or during the hearing did the parents indicate that they wanted to postpone the meeting to secure an attorney, or that they did not want to participate because the [d]istrict’s counsel was on teleconference.”  A written transcript of the September 11, 2017 hearing in the record corroborates the PPS director’s statement with respect to the hearing.  Thus, I find that, while not required to do so, respondent informed petitioner that he could be represented by an attorney at the September 11, 2017 meeting and petitioner’s claims related thereto are without merit.

With respect to the school district attorney’s participation in the meeting, I acknowledge that previous decisions of the Commissioner have cautioned districts regarding the appropriate or permissible use of attorneys during the religious exemption process.  For example, in Appeal of A.S. (57 Ed Dept Rep, Decision No. 17,319), I remanded a determination of a parent’s religious exemption request where the request had been considered and denied by the district’s attorney in a letter which provided no rationale for such denial.  By contrast, in Appeal of A.C., (50 Ed Dept Rep, Decision No. 16,175), although the decision noted that the use of an attorney to undertake the preliminary investigation and communication with a petitioner regarding a religious exemption request may be inappropriate, the Commissioner concluded that the district did not violate State Education Department guidance or deprive the parent of fair consideration of her religious exemption request where the principal reviewed petitioner’s request, made the final decision denying petitioner’s exemption request, and sent written notice explaining the reasons for his denial thereof (Appeal of A.C., 50 Ed Dept Rep, Decision No. 16,175).

Similar to the circumstances presented in Appeal of A.C. (50 Ed Dept Rep, Decision No. 16,175), the record in this case indicates that, although the school district attorney participated in the September 11, 2017 meeting by telephone, the final determination in this matter was made by respondent’s PPS director in a written decision which explained the district’s reasoning.  Additionally, the attorney’s involvement in the instant case was less substantial than in Appeal of A.C. (50 Ed Dept Rep, Decision No. 16,175), as petitioner’s request was originally considered by the PPS director, who determined that additional information was needed and scheduled the September 11, 2017 meeting.  Therefore, I cannot find that the school district attorney’s participation in the September 11, 2017 meeting by telephone deprived petitioner or his spouse of fair consideration of their immunization exemption request.

Petitioner also argues that his first language is Polish and that he had “tremendous difficulty expressing [him]self at the [September 11, 2017] hearing” using English.  However, respondent’s PPS director avers that “[m]y impression [at the September 11, 2017 hearing] was that both parents were fluent in English, and completely understood what was being said.”  Moreover, petitioner and his spouse submitted two written statements which reflected an ability to communicate in English.  Petitioner submits no reply or other evidence to refute respondent’s evidence.  Accordingly, on this record, I cannot find that the district acted improperly.

Next, petitioner argues that respondent erred by finding that he and his spouse were not credible and that it failed to independently evaluate the sincerity of his religious beliefs.  In the PPS director’s September 18, 2017 determination, she found that petitioner and his spouse had previously vaccinated the student and failed to sufficiently explain the “sudden [and] abrupt change in religious beliefs.”  The PPS director further reasoned that petitioner and his spouse were not credible because they were “willing [] to schedule an appointment for immunization as recently as August 18, 2017.” 

As indicated above, the student received 23 of her required immunizations, some as recently as 2016.  Additionally, when informed that the student required DTAP #5, Polio#4 and Varicella #2, petitioner’s spouse indicated, through her own conduct and vis-à-vis the student’s physician, that the student would receive these immunizations in September 2017.  Respondent argues that these facts and petitioner’s spouse’s conduct demonstrate that they lacked sincerely-held religious beliefs opposed to immunization.  I have previously held that the fact that a child was immunized in the past is relevant to an assessment of the sincerity of a parent’s alleged religious beliefs (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,495; 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).

Petitioner asserted at the September 11, 2017 hearing that he has always been opposed to immunizations, but that, until recently, his spouse “had [the student] vaccinated [] against my wishes ....”  Petitioner further explains that, recently, a “near death experience” brought his spouse “much closer to God and she has moved much closer to me spiritually and has as a result began to share my religious beliefs which I have always shared with her.”  Petitioner further states:

The requirement of vaccination has been a constant source of strife for [my wife] and myself ... until only recently and only because of recent tragic events in my wife’s life has my wife come to understand my passion for God and how sincere my belief in his ability to care for us and our child and vaccinations only call his omnipotent ability into question.  

Petitioner’s spouse stated at the hearing that the student was previously vaccinated:

because I thought at the time that this is the best thing for her, but in 2016 I experienced something [tragic] and something that I really don’t want to talk about.  And God helped me get through this, and since then I share [petitioner’s] beliefs.  And I mean that’s how I can explain this.  I don’t want to go into details.

The PPS director avers in her affidavit that petitioner’s spouse’s “claim is not credible given that as of August 18, 2017, less than one month prior to the hearing, and after the mother’s ‘tragic’ experience, the mother scheduled a doctor’s appointment for the student to be vaccinated” and “[t]he mother could not adequately explain the reason for her change of heart from August 18th to early September, except to state that she was not going to go through with the vaccinations, but made the appointment so that she would not have to ‘go into [her] personal life.’”

In matters of credibility, 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).  On this record, I cannot find that respondent’s determination that petitioner and his spouse were not credible to be inconsistent with the facts.  The record reveals that the student received 23 immunizations, some as recently as 2016.  While petitioner asserts that he was always opposed to immunization and that a “near death experience” caused his spouse to reevaluate her beliefs, respondent acted within its discretion in rejecting such explanation because neither petitioner nor his spouse offered any explanation as to the nature of this experience or why it would have triggered a shift to a religious belief against immunizations (see Appeal of E.A., 58 Ed Dept Rep, Decision No. 17,530).  Although the mere fact that petitioner’s spouse indicated that she would vaccinate the student in August 2017 while, in fact, she had no intention of doing so may not be sufficient in and of itself to establish a lack of credibility (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095), respondent’s credibility determination appears to have been more generally based upon the fact that petitioner and his spouse failed to adequately explain their change of heart regarding immunizations.  Thus, the record lacks clear and convincing evidence that respondent’s credibility determination was inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095).

Additionally, 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.  Petitioner and his spouse’s written exemption requests and statements during the hearing offer mere general statements about God, the perfection of the immune system, and citations to Biblical verses and passages which, 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).  For example, petitioner and his spouse asserted in their September 1, 2017 written statement that their “child’s body is the temple of God,” that their “personal religious beliefs prohibit the injection of foreign substances into the body” and that their beliefs “are based on readings in the Holy Bible as we interpret the scripture.”  Petitioner offered similar statements at the hearing, stating that “our body is a pure body” and “that the blood has to be pure.”  Based upon these general statements, I cannot find that petitioner met his burden of proving that he holds sincerely-held religious beliefs opposed to immunization.

Finally, on appeal, petitioner submits a letter from his priest dated September 27, 2017 in which the priest states that petitioner is “a strong believer adhering to the teaching of the Bible which includes the Old Testament (the Hebrew scriptures) and the New Testament. His convictions are clear and founded on the scripture’s teachings ....”  The letter further states that petitioner has “[f]or several years ... brought up in conversations and counseling his frustration with the issue of forced immunizations of his daughter ....”  Respondent objects to consideration of this letter, noting that it was “secured after the September 18, 2017 determination.”  In this respect, I note that the request form for a religious exemption to immunization provided to petitioner and his spouse on September 6, 2017 indicated that one example of “supporting documents” which petitioner and his spouse could bring to the September 11, 2017 meeting was “[a] letter from an authorized representative of the church, temple, religious institution, etc. attended by the parent/guardian ....”  Petitioner does not dispute that he and his spouse received this form and does not assert that he was unable to obtain a letter from the priest prior to the September 11, 2017 meeting.  I have reviewed the letter and even assuming, arguendo, that it was presented to respondent at the time the determination was made in this case, I do not find that it is dispositive in determining whether petitioner holds genuine and sincere religious beliefs opposed to immunizations (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,495; Appeal of S.F. and E.R., 58 id., Decision No. 17,439).

While the record reflects that petitioner may sincerely object to immunizations, the crux of the issue is whether the reasons for his 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 petitioner has failed to demonstrate that his 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

 

[1] The record also contains a letter from petitioner and his spouse dated September 7, 2017 which largely reiterated the information contained in the original exemption request and, similarly, requested a religious exemption from immunization.