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Decision No. 17,606

Appeal of S.C., on behalf of her children A.C. and A.C., from action of the Board of Education of the Elmont Union Free School District regarding immunization.

Decision No. 17,606

(March 20, 2019)

Chesney & Nicholas, LLP, attorneys for petitioner, Charles C. Nicholas, Esq., of counsel

Colum P. Nugent, Esq., attorney for respondent

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her children, A.C. and A.C. (“the students”), are not entitled to religious exemptions from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained in part and remanded.

Petitioner requested religious exemptions from immunization for the students by written requests dated August 31, 2017.  By letter dated September 1, 2017, respondent notified petitioner that the exemption requests were denied, stating, “[t]he district finds here that the statement of religious belief submitted by [petitioner] should not obviate the need to immunize [the students].  The statement appears to be formed in terms of religious belief in order to gain the exemption.”

Subsequently, respondent’s superintendent met with petitioner on October 18, 2017 and agreed to accept additional information regarding her religious beliefs contrary to vaccination.  In an email dated October 31, 2017, petitioner explained that:

There is a reason why I’ve never vaccinated any of my children.  Perhaps I should say “a feeling,” the feeling led to a decision not to vaccinate....

I didn’t quite understand why I felt so adamant against vaccinations, but the feeling was unwavering and persistent.  This caused me to do some research and what was revealed to me made sense and supported my decision not to vaccinate.  My research revealed that vaccinations are created with the use of human cells from aborted fetal tissue as well as human albumin....  In my faith born out of union with the Lord, abortion is plain and simple, murder....

Moreover, injecting foreign materials into one’s bloodstream is in direct violation of our practices.  The mixing of these materials with ones [sic] bloodstream contaminates the temple.  Vaccines contain fetal bovine serum, animal blood cells, chick embryo cell cultures and even monkey kidney cells all of which alters the temple, our bodies which God has created....

By utilizing vaccines I am directly or indirectly supporting the ending of human life and this would be sacrilegious to my deeply held faith....

In a letter dated November 8, 2017, respondent denied the requests, without stating a reason for the denial.  This appeal ensued.

Petitioner argues that the denial of her requests was arbitrary and capricious because respondent did not adequately consider her requests and failed to articulate its reasoning for the denial.

Respondent counters that it properly denied petitioner’s requests after careful consideration.

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 F.Supp 2d 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 F.Supp 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 F.Supp 2d 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).

Initially, petitioner asserts that respondent failed to provide a sufficient explanation of the reasons for denying her requests for religious exemptions.  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.”  In this case, despite respondent’s protestations to the contrary, the record reflects that respondent did not fully consider petitioner’s requests.  In her letters requesting the religious exemptions, petitioner made only very general allegations that her religious beliefs prohibit the injection of foreign particles into the body and immunizations “are a lack of faith in God” and God’s perfect immune system.  Respondent’s September 1, 2017 letter stated that petitioner’s religious beliefs did not require an exemption from immunization and explained that, in respondent’s judgment, petitioner’s statement was “formed” in terms of religious belief to gain an exemption.  While ambiguous, the September 1, 2017 letter appears to reflect respondent’s contention that petitioner’s objections to immunizations are not religious in nature, but rather are grounded in her concerns about the harmful effects of immunization.  Such contention is clearly set forth in the answer in this appeal.  However, respondent’s December 4, 2017 letter, which again denied petitioner’s requests, does not address petitioner’s allegations in her October 31, 2017 email concerning her religious objections over the use of cells from aborted fetal tissue and other contaminants in immunizations.  Respondent’s answer is completely silent on this issue.  Thus, respondent did not fully address petitioner’s contentions and a remand is appropriate (see Appeal of M.S., 58 Ed Dept Rep, Decision No. 17,572; Appeal of L.B., 58 id., Decision No. 17,552).

I, therefore, remand this case to respondent to fully comply with the procedural requirements of PHL §2146 and determine, based upon an examination of petitioner’s beliefs, whether or not A.C. and A.C. are entitled to an exemption from the immunization requirements of PHL §2164 in conformity with all applicable law and regulations and consistent and in accordance with this decision and order and, in making such determination, respondent shall consider all relevant information submitted by petitioner.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this decision and order, respondent determine whether the students are entitled to an exemption from the immunization requirements of PHL §2164 in conformity with all applicable laws and regulations and consistent with this decision, and that, in making such determination, respondent shall consider all relevant information submitted by petitioner.

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