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Decision No. 17,594

Appeal of R.S. and D.S., on behalf of their children E.S. and A.S., from action of Terry Ward, II, superintendent of schools for the Cato-Meridian Central School District regarding immunization.

Decision No. 17,594

(February 26, 2019)

Matthew R. Fletcher, Esq., attorney for respondent

ELIA, Commissioner.--Petitioners appeal the determination of Superintendent Terry Ward (“respondent” or “superintendent”) of the Cato-Meridian Central School District (“district”) that their children, E.S. and A.S. (“the students”), are not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

According to the record, in the winter of 2018, petitioners attempted to enroll the students in the district’s schools and indicated that they would be seeking a religious exemption from the immunization requirements of PHL §2164.  By letter dated January 18, 2018, a school nurse employed by the district requested that petitioners submit a written statement explaining their religious beliefs and objections to immunizations.  In addition, the school nurse requested that petitioners provide “a written statement on official letterhead from your religious leader or pastor confirming the beliefs held by your faith that do not allow you to immunize your children.”

On February 4, 2018, petitioners submitted a religious exemption request form on behalf of the students stating, among other things, that they were “opposed to all vaccinations” because they “believe[d] in and follow[ed] God and the principles laid out in the Bible ....”  Petitioners also stated that “[w]e believe the Bible is the Word of God and to violate its teachings would be considered sin.”  Petitioners elaborated that “[i]f we were to allow the injection of neurotoxins, a multitude of various animal parts, foreign DNA, carcinogens, and heavy metals into our children, it would be a violation of this biblical teaching, and consequently sin.”

In support of their religious exemption request, petitioners cited various Biblical verses and texts.  Petitioners also submitted an undated letter from their pastor, who indicated that he had “talked with [petitioners] about their beliefs regarding their children receiving any vaccinations” and that he found their opposition to vaccination “to be sincerely held ... based on their understanding of Scripture.”

The record indicates that on February 16, 2018, respondent met with petitioners to discuss their request for an exemption.  By letter dated March 8, 2018, respondent denied petitioners’ request for a religious exemption.  The superintendent noted that “many Christian families do indeed comply with [PHL §2164],” and concluded that, “[a]fter considering the health and safety of all students here in [the district], it is my decision that your family must comply with [PHL §2164] in order to attend our school district.”  This appeal ensued.

Petitioners initially served a copy of the petition in this matter upon respondent on April 2, 2018.  By letter dated April 9, 2018, my Office of Counsel returned the petition to petitioners because it did not include the notice required by §275.11 of the Commissioner’s regulations.[1]  This letter indicated that, if petitioners served and filed a corrected petition within two weeks of the date of the letter, the appeal would be deemed to have been commenced when the initial petition was served; i.e., April 2, 2018.

In a letter to petitioners dated April 12, 2018, respondent indicated that, upon receipt of petitioners’ April 2, 2018 petition, he had “reviewed [the] petition initiating an appeal to the Commissioner of Education”; that he and the board of education had reviewed petitioners’ application for an exemption from immunization; and that petitioners’ “request for [the] children to enroll in [the] school district without being immunized [was] denied ....”  In that letter, respondent set forth specific reasons for his denial which had not been articulated in his March 8, 2018 letter.

On April 17, 2018, petitioners re-served the petition challenging the superintendent’s March 8, 2018 determination, within the two-week period required by my Office of Counsel’s April 9, 2018 letter.

In this appeal, petitioners challenge the superintendent’s March 8, 2018 determination, contending that their objections to immunizations are based on genuine and sincerely-held religious beliefs.  They seek a determination that the students are entitled to a religious exemption from the immunization requirements of PHL §2164.

Respondent argues that the appeal must be dismissed for failure to join the school district or the board of education as necessary parties, for lack of proper service and because petitioners failed to serve the Notice of Petition that is required by the Commissioner’s regulations.  Respondent also asserts that the petition that was re-served on April 17, 2018 did not include four exhibits referenced therein and, thus, was incomplete.  Respondent contends that petitioners have not met their burden of establishing an entitlement to an exemption from the immunization requirements of PHL §2164.

The appeal must be dismissed for lack of personal jurisdiction over respondent.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, the superintendent is the only named respondent.  However, petitioners failed to personally serve him with a copy of the petition and, instead, served his secretary.  Respondent asserts that the secretary is not authorized to accept service on his behalf, and petitioners submit no reply to respondent’s defense nor any evidence to the contrary (Appeal of J.C. and J.C., 57 Ed Dept Rep, Decision No. 17,407).  Accordingly, the appeal must be dismissed.

The appeal must also be dismissed because petitioners failed to serve a Notice of Petition on respondent that complies with 8 NYCRR §275.11.  On April 17, 2018, together with the instant petition, petitioners served a document captioned “NOTICE OF PETITION” which did not include the language required by 8 NYCRR §275.11(a).  The Notice of Petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; see e.g. Appeal of Gaynor Sr., 51 Ed Dept Rep, Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048).  A petition that does not contain the language required by §275.11 is fatally defective and does not secure jurisdiction over the intended respondent (see Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).  Therefore, the appeal must be dismissed.

Although the appeal must be dismissed on procedural grounds, I must comment on the manner in which the district handled petitioners’ exemption request.  While the record does not indicate whether the district has an administrative appeal process regarding requests for religious exemptions, the record indicates that respondent reviewed petitioners’ exemption request and issued a denial letter dated March 8, 2018 from which petitioner initiated this appeal.  Upon receiving a copy of the appeal petition, however, respondent and the board of education further reviewed petitioners’ exemption application, along with the petition in this appeal, and thereafter respondent sent a more detailed letter setting forth the reasons for denying petitioners’ exemption request.  This manner of handling petitioners’ exemption request – particularly in view of the appeal initiated by petitioners – causes unnecessary confusion and evinces a lack of clarity in the district’s process.  I encourage the district to review its policies and procedures in this regard to ensure that requests for immunization exemptions are thoroughly reviewed from the onset and that parents are provided with appropriate and timely written determinations clearly articulating the specific reasons for the denial of a religious exemption, in accordance with State Education Department guidance.

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

THE APPEAL IS DISMISSED.

 

 

[1] My Office of Counsel also returned the petition because it lacked the required language to request interim relief (see 8 NYCRR §276.1).  However, petitioners clarified in a subsequent submission that they are not seeking interim relief.