Appeal of C.C.-B., on behalf of her son E.B., from action of the New York City Department of Education regarding immunization.

Decision No. 17,592

(February 26, 2019)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Christopher Ferreira, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE” or “respondent”) that her son, E.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.

At all times relevant to this appeal, the student has resided within respondent’s district and attended its schools.  In November 2016, petitioner sought religious and medical exemptions from immunization pursuant to PHL §2164 for the student.

By memorandum dated December 28, 2016, respondent’s health service coordinator (“coordinator”) in the Office of School Health (“OSH”) denied petitioner’s religious immunization exemption request on the grounds that petitioner’s documentation was “inadequate to warrant an exemption and did not substantiate” that petitioner held “genuine and sincere religious beliefs which are contrary to immunization.”  The coordinator further informed petitioner that the student had all required vaccines except for the Meningococcal vaccine.  The coordinator also informed petitioner that she could appeal the determination by arranging an interview with one of respondent’s health directors.

Over nine months later, on October 10, 2017, petitioner wrote a letter addressed to OSH in which she indicated that she had “complied several times” with respondent’s directives concerning her religious exemption request and would not provide further information to respondent.  Specifically, petitioner stated:

I will not submit another document; I will not entertain your attempts to make me submit it to your indoctrination, I will no longer continue to be harassed and or threatened that my son will not be able to attend NYC Public School because of our religious beliefs [emphases omitted].

Petitioner concluded her letter by requesting that, if respondent would not allow her son to attend school, that respondent “put that in writing, on school letter head ... and mail it to my home address.”

The record contains two other documents dated October 10, 2017.  The first is a letter from an Imam addressed to one of respondent’s health directors.  In the letter, the Imam indicates that the purpose of the letter is “to support” petitioner’s religious exemption request.  The second is a letter from an attorney addressed to the coordinator.[1]  This letter asserts that petitioner has a constitutional right to object to immunization and further requests that respondent grant petitioner a religious exemption from the requirements of PHL §2164.

By memorandum dated January 11, 2018, the coordinator denied petitioner’s religious immunization exemption request on the same grounds outlined in the coordinator’s December 28, 2016 denial letter.  The January 11, 2018 memorandum, like the December 28, 2016 memorandum, informed petitioner that she could appeal the determination by arranging an interview with one of respondent’s health directors.  This appeal ensued.[2]  Petitioner’s request for interim relief was denied on April 9, 2018.

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 of PHL §2164.

Respondent argues in an affirmation in opposition to petitioner’s stay request that petitioner failed to specify the precise nature and origin of her beliefs sufficient to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper. 

I must first address the procedural issues.  Respondent did not submit a timely answer in this appeal, but requests permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations.  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  Here, respondent indicates that its answer was served eight days late due to an “oversight” and asserts that petitioner suffered no prejudice from the delay.  I do not find this constitutes a valid excuse for the late answer (see (Appeal of R.S., 57 Ed Dept Rep, Decision No. 17,238; Appeal of Brarens, et al., 51 id., Decision No. 16,317).  Accordingly, because such answer was late, and respondent has not offered sufficient justification for the delay, I have not considered respondent’s answer (Appeal of R.S., 57 Ed Dept Rep, Decision No. 17,238).  However, respondent’s affirmation submitted in opposition to petitioner’s request for interim relief is properly part of the record before me, and I have considered it to the extent that it is responsive to the allegations contained in the petition (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526; Appeal of Brarens, et al., 51 id., Decision No. 16,317).[3]

Additionally, petitioner served a reply in this matter after her request for interim relief was denied, but prior to service of respondent’s answer.  It appears that petitioner sought to respond to allegations contained in the affirmation submitted by respondent’s counsel in opposition to petitioner’s stay request.  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, because petitioner’s reply was served prior to service of respondent’s answer, it could not have responded to contentions in the answer and cannot be considered as a reply (Appeal of D.K., 58 Ed Dept Rep, Decision No. 17,539).  Nevertheless, in my discretion, and in light of the fact that petitioner is proceeding pro se, I have accepted this document as an additional supporting paper pursuant to 8 NYCRR §276.5(a) only to the extent that it responds to new material or affirmative defenses set forth in the affirmation submitted by respondent’s counsel in opposition to petitioner’s request for interim relief.

Petitioner also argues 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 constitutional claims.

The appeal must be dismissed for failure to exhaust administrative remedies.  Generally, a board of education has discretion to adopt rules governing appeals of district decisions and may impose timelines in connection therewith (see Education Law §§1709[1]; 2590-d[1]).  The conditions for appealing an adverse district decision, including any attendant timelines, must be reasonable and clearly communicated to parents (see e.g. Appeal of Halpern and Halpern, 58 Ed Dept Rep, Decision No. 17,480; Appeal of D.O., 53 id., Decision No. 16,543 [suspension notice containing “oblique” reference to code of conduct which prescribed a district timeline for an appeal held insufficient to provide notice of a restrictive policy of administrative exhaustion]).

Here, Chancellor’s regulation A-701 provides, in relevant part, that parents whose requests for a religious exemption have been denied can appeal such determination “by arranging for a personal interview with ... [a] Health Director within 10 school days of receipt of the letter of denial.”  The regulation further explains that:

At the interview, the parent will have an opportunity to offer further evidence to support the request.  The OSH will make a final decision based on the entirety of the evidence ....

Respondent further asserts, as the coordinator’s December 28, 2016 and January 11, 2018 denial letters indicate, that if petitioner’s appeal was denied, she could then “appeal the denial to the NYS Commissioner of Education ... within thirty (30) days of the decision, pursuant to Education Law, Section 310.”

Here, the record reflects that petitioner did not appeal the coordinator’s December 28, 2016 or January 11, 2018 determinations by arranging for an interview with a health director.  With respect to the coordinator’s December 28, 2016 determination, respondent asserts that petitioner took no action for over nine months until, on or about October 10, 2017, she sent written materials to the coordinator, OSH, and a health director.[4]  Given the amount of time which had elapsed, the coordinator reasonably interpreted these submissions “as a new request for [a] religious exemption,” which she denied in a memorandum dated January 11, 2018.

I further find that respondent clearly communicated its internal appeals policy to petitioner in the coordinator’s December 28, 2016 and January 11, 2018 memoranda.  These memoranda indicated, in pertinent part, that petitioner could “appeal the denial of [her] exemption request by arranging an interview” with a named health director; provided a telephone contact number for the health director; indicated that such a request must be made “within ten school days of receipt of this letter”; and that, if the appeal was denied, petitioner could “appeal the denial to the NYS Commissioner of Education ... pursuant to Education Law, Section 310.”  Accordingly, based upon respondent’s local policy (codified in Chancellor’s regulation A-701) and the clear language of the coordinator’s memoranda, I find that petitioner failed to exhaust her administrative remedies and the appeal must be dismissed.

In her response to the affirmation submitted by respondent in opposition to her stay request, petitioner contends that she “spoke with” the health director in connection with the coordinator’s December 28, 2016 denial and, after being asked whether she wished to interview by person or phone, agreed to a “phone interview.”  Petitioner asserts that she thereafter answered five questions posed by the health director.  As proof, petitioner submits an undated letter addressed to the coordinator in which petitioner describes the substance of the responses she allegedly provided to the health director during the phone interview.  Petitioner does not assert when this phone conversation took place, or when she drafted or sent the undated letter.

Even assuming the truth of petitioner’s allegations concerning the alleged oral interview following respondent’s December 28, 2016 denial – allegations which were not set forth in the petition – there is no evidence in the record that petitioner requested an interview with a health director following the coordinator’s January 11, 2018 determination as required by Chancellor’s regulation A-701.  In fact, the March 9, 2018 email attached as an exhibit to the petition advised petitioner that there was no record that she had requested an appeals interview, and that the student would be excluded from attendance beginning March 12, 2018.  Petitioner subsequently commenced the instant appeal on March 20, 2018.  The coordinator’s January 11, 2018 determination superseded the December 26, 2016 determination; thus, I find on this record that petitioner has failed to exhaust her administrative remedies based on her failure to appeal the January 11, 2018 determination in accordance with Chancellor’s regulation A-701.

Although the appeal must be dismissed on procedural grounds, 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) and 10 NYCRR §66-1.3 (see Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,214; Appeal of D.H., 52 id., Decision No. 16,425).

In light of this disposition, I need not consider the parties’ remaining contentions.

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