Appeal of D.R., on behalf of her son A.N., from action of the New York City Department of Education regarding immunization.

Decision No. 17,585

(February 11, 2019)

Chesney & Nicholas, LLP, attorneys for petitioner, Lindsie B. Alterman, Esq., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Agnetha E. Jacob, Esq., of counsel    

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, A.N. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

According to the record, the student is enrolled in respondent’s district and “has all his required vaccines except a fifth dose of the DTap (diphtheria, tetanus, and pertussis) vaccine, a fourth dose of the Polio vaccine, a second dose of the MMR (measles, mumps and rubella) vaccine, and a second dose of the varicella (chickenpox) vaccine.”  By letter dated November 7, 2017, petitioner requested a religious exemption on behalf of the student.  In the letter, petitioner explained how her familial relationships, Catholic upbringing and faith played an important role in her life.  Petitioner stated, among other things, as follows:

Initially, I complied with [the student’s] pediatrician and had my son vaccinated according to the NYS Department of Health schedule, believing that this was in his best interests.  Having known Catholics who accepted vaccination, I thought I understood this medical procedure enough to give my consent for it in good faith.  I did not yet know that vaccines contradict the very foundations of my faith for multiple reasons.

Petitioner further explained that after having a conversation with a friend and fellow Catholic in November 2013, she was “awakened” to “God’s word on vaccines” and “deeply regret[ted] having vaccinated [the student] up to that point.”  Petitioner further asserted that “[u]nfortunately, the imposition of vaccines would encumber my efforts to instill the Catholic faith in [the student] ... Our blood plays a vital role in our relationship with the Lord, as God cannot save those with impure blood” and “when we desecrate our blood, the most holy element of our being — be it through vaccines or other means — we are dishonoring our pact with God and forfeit our right to eternal redemption.”  Petitioner also stated, quoting Scripture, that:

In the words of Matthew 16:26: “For what will it profit a man if he gains the whole world and forfeits his soul?  Or what shall a man give in return for his soul?  I am at peace knowing I have done everything in my capacity to protect both my soul and my son’s soul in the eyes of God.

In support of her religious exemption request, petitioner cited, and explained her understanding and interpretation of, various Biblical verses and texts.

By memorandum dated December 13, 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.”  The memorandum provided information about how to appeal the determination, which petitioner did by requesting an interview with one of respondent’s health directors.

According to the record, petitioner was provided with written questions from respondent to which she submitted written responses on January 5, 2018.  Petitioner also spoke with the health director by telephone on January 9, 2018.

By memorandum dated January 18, 2018, 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 “[the student] has all of the required vaccines except for DTaP#3, Polio#4, MMR#2 and varicella#2.”  This appeal ensued.  Petitioner’s request for interim relief was granted on February 22, 2018.

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs.  Petitioner also claims that respondent failed to provide her with specific reasons for the denial of her request.  Petitioner further complains that respondent’s appeal process is flawed and, specifically, that the health director recommended that petitioner alter her written responses to respondent’s questions “to manipulate” petitioner’s answers so that her request would be denied.  Petitioner seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164.

Respondent contends that petitioner failed to provide sufficient information to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper.  Respondent further asserts that petitioner’s objections to immunizations are not based on genuine and sincerely-held religious beliefs and that petitioner has failed to meet her burden of proof.

I must first address several 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.

Petitioner also argues, in part, that she is entitled to relief based upon her rights under the First Amendment.  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 in this appeal, I decline to consider such claims.

Turning next to petitioner’s allegations concerning respondent’s process for consideration of immunization requests, petitioner’s principal complaint is that the health director allegedly “advise[d]” her to alter her answers to respondent’s written questions during the phone interview, which caused the coordinator to deny petitioner’s request.  As evidence, petitioner submits what she claims is a transcription of the January 9, 2018 interview with respondent’s health director.  Petitioner claims that she personally recorded and transcribed the conversation.  Respondent did not address petitioner’s alleged transcription in its papers other than to deny knowledge or information sufficient to form a belief as to the veracity of the transcription.  Specifically, respondent did not submit an affidavit from the health director or seek to exclude the transcription from the record.  I have reviewed the entire transcription and, while it indicates that the health director occasionally suggested ways in which petitioner could alter her written responses, I cannot find that these suggestions resulted in any prejudice to petitioner.  Indeed, according to the record, the health director ultimately concluded that petitioner “seem[ed] to hold a genuine and sincere religious conviction and belief of not immunizing her child.”  While respondent ultimately denied petitioner’s appeal, the evidence in the record nevertheless suggests that the health director supported petitioner’s request.  Thus, petitioner has not proven that any statements by the health director deprived her of a full and fair opportunity to present her claims at the local level.[1]

Petitioner also asserts that respondent failed to provide a sufficient explanation of the reasons for denying her request for a religious exemption.  In support of her claim, petitioner relies on guidance from the New York State Education Department (“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 December 13, 2017 and the January 18, 2018 memoranda essentially state that petitioner failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  Respondent’s coordinator states in her affidavit that she found that petitioner “did not provide sufficient information to substantiate a finding that she held a genuine and sincere religious belief contrary to immunizations.”  Although respondent’s reasoning was minimal, I nevertheless find that respondent has articulated a sufficient rationale for its determination for purposes of this appeal.  Further, petitioner has had ample opportunity to respond to respondent’s reasons for its denial in this appeal and has 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.

The record also indicates that one factor considered by respondent in denying petitioner’s exemption request was the student’s prior immunization history.  Although I have previously held that the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243), it 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 Appx 16 [2d Cir. 2012], cert. denied, 133 SCt 1997).

Here, petitioner explained that her critical turning point on vaccines occurred on November 8, 2013 when the student received his last vaccination.  Petitioner explains that she ran into a friend who, like her, was “a devout Catholic” and that her friend informed her that she did not vaccinate her daughter because “it’s against our religion.”  Petitioner further elaborates that her friend’s statement:

piqued my interest to reevaluate my decision to further vaccinate [the student].  The weeks I spent researching the Catholic stance on vaccinations led to the moment of clarity for me.  The facts I learned inspired an epiphany .... Two arguments in particular compelled me to reach the permanent conclusion to stop vaccinating my son: [t]hat vaccines desecrate the sanctity of our blood and that vaccines belie one’s faith.

I find that, based on these allegations, petitioner provided sufficient information to establish the basis for her change of heart regarding the student’s immunizations.  However, petitioner has not, as described below, met her burden of proof in establishing that her opposition to immunization stems from sincerely-held religious beliefs or that respondent’s denial of her request was arbitrary and capricious. 

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 her burden of establishing that respondent’s determination was arbitrary or capricious.  First, the record supports respondent’s determination that petitioner’s assertions were “too general and non-specific” to demonstrate a sincerely-held religious opposition to immunization.  I have generally held that mere citations to statements that are religious in nature, general statements about God, the perfection of the immune system, and citations to Biblical verses and passages, without more, are not sufficient 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).  Here, petitioner makes several general statements concerning the perfection of God and the human body; for example, that “God is omnipotent and ... his creations are perfect”; God is “infallible and absolute”; and that God has “equipped human beings with a heaven-sent guard against disease.”  I do not find that such general assertions satisfy petitioner’s burden of proving a sincerely-held religious opposition to immunization.

Moreover, respondent’s coordinator explains that she also rejected petitioner’s exemption request because some of her “statements about vaccines containing animal parts and ‘contaminating’ the body suggested that petitioner’s objection partially reflected a medical concern.”  Upon review of the record, I agree that petitioner’s request was at least partially based upon health-based or medical concerns.  Petitioner indicated that she objected to vaccines because they contain a “large range of biological matter”  such as “[c]ells and proteins, animal blood, RNA and DNA, disease infected cells of animals, chicken embryos, canine kidney tissue, [and] monkey tissue....”  While petitioner contends that her opposition to these ingredients is based upon her belief that these ingredients dilute the purity of blood, there is insufficient evidence in the record to overturn respondent’s determination that petitioner’s articulation of these specific ingredients – which petitioner described as “profoundly disturbing” –reflects a medical or philosophical concern, as opposed to a religious concern (see Appeal of R.R., 54 Ed Dept Rep, Decision No. 16,663). 

Additionally, respondent’s coordinator determined that petitioner offered inconsistent statements regarding the perfection of the human body and the circumstances under which she deems medical treatment permissible.  Individuals need not oppose medical treatment per se to qualify for a religious exemption but must assert only that they believe 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 asserted in her written statement that the human body is perfect, and that medical intervention against disease is unnecessary if one believes in God.  Specifically, petitioner stated that:

Vaccines claim to protect us from something which God is already protecting us: He has equipped human beings with a heaven-sent guard against disease.  Proverbs 3:5-8 promises that as long as we succumb to God implicitly, we will enjoy good health ... God has given us intelligent bodies that know exactly how to respond to disease.  How perfect He has made us, that he has blessed our bodies with the ability to fight illness .... 

However, in her responses to the health director’s interview questions, petitioner stated that she was “not opposed to all medicine and/or medical procedures,” but that she only opposes those interventions which “violate Biblical teachings.”  Petitioner stated that x-rays “do not violate Catholic precepts.  But blood transfusions do contaminate our blood in ways similar to vaccines, so they are impure and unholy.”  With respect to other “medicines/procedures,” however, petitioner stated that she “would have to research their ingredients first before I could decide whether my faith allows them.”  Respondent’s coordinator explains in her affidavit that, in her view, petitioner did not “explain the religious basis for allowing some medical treatment under certain circumstances but not under others,” and that this “struck [her] as contradictory to [petitioner’s] professed core belief.”  On this record, I find no basis upon which to overturn respondent’s determination in this regard.

Accordingly, while the record reflects that petitioner may sincerely object to immunizations, the crux of the issue is whether the reasons for her 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 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 L.L., 54 Ed Dept Rep, 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