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Decision No. 17,621

Appeal of H.T., on behalf of her child D.T., from action of the Board of Education of the City School District of the City of Ithaca regarding immunization.

Decision No. 17,621

(April 23, 2019)

Schlather, Stumbar, Parks & Salk, LLP, attorneys for petitioner, Sujata S. Gibson, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Ithaca City School District (“respondent”) that her child, D.T. (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In respondent’s district, requests for religious exemptions are considered by one of four religious exemption review committees.  Each committee is composed of three building principals within respondent’s district as well as respondent’s “Administration Officer.”  Assignments to each committee are made such that the building principal of the school that the requesting parent’s student attends is not included in the committee.  Each committee makes a recommendation to respondent’s superintendent, and the superintendent makes the final determination as to whether an exemption will be granted or denied.  Respondent explains on appeal that it created this system of review after the district reviewed its unvaccinated student body following an audit by the New York State Department of Health (“DOH”) in 2016.  Respondent found that it “did not have a systematic process for vetting religious exemptions from vaccination” and that respondent “was in the practice of granting every religious exemption application merely based on parent request.”

On or about August 21, 2017, petitioner requested a religious exemption to immunization on behalf of the student, who was entering seventh grade in respondent’s district.  This request was assigned to one of respondent’s committees.  After receiving petitioner’s request, the committee requested further information regarding petitioner’s opposition to immunization in a letter dated September 26, 2017.  This letter posed five specific questions to petitioner to answer in writing and further stated that “[i]n addition to, or in lieu of, providing the information outlined above in writing, our subcommittee would also welcome the opportunity to meet with you in person to discuss each of the above topics.”  According to the record, petitioner responded to the committee’s questions in a letter dated October 7, 2017.  The record also indicates that petitioner met with the committee and counsel for the district on November 20, 2017.  Petitioner was represented by an attorney at this meeting.[1]

Following this meeting, the committee recommended to the superintendent that petitioner’s request be denied on the ground that petitioner’s opposition to immunization was based on health and safety concerns rather than religious beliefs.  On November 21, 2017, respondent’s superintendent denied petitioner’s request for a religious exemption.  The superintendent explained that the basis of petitioner’s beliefs appeared to be “personal/secular/medical in nature, rather than religious” and found that “the source of [petitioner’s] opposition is [her] belief that vaccinations are harmful to [her] health and the health of [her] child.”  This appeal ensued.  Petitioner’s request for interim relief was denied on January 2, 2018.

Petitioner argues that the denial of her request for a religious exemption was arbitrary and capricious.  Initially, petitioner complains that she was not given adequate time to prepare and submit a written response to the questions raised in the committee’s September 26, 2017 letter.  Petitioner further argues that “the process by which [the] Superintendent and Subcommittee” denied her request was unfair and “not carried out in good faith.”  In this respect, petitioner alleges that respondent was solely “motivated by the desire to decrease the number of exemptions in the district ....”

Respondent maintains that its denial of petitioner’s request for a religious exemption was not arbitrary and capricious.  Respondent further argues that the record supports its conclusion that petitioner’s opposition to immunization was based on health and safety concerns.

First, petitioner alleges that she was not afforded sufficient time to generate the written response requested by the committee in its September 26, 2017 letter.  Petitioner alleges that she received the September 26, 2017 letter by mail on October 6, 2017, and, thus, could not comply with the October 2, 2017 deadline to submit the information because it had already passed.[2]  Petitioner asserts that she requested an extension to submit her response by October 7, 2017, and that respondent granted such request.  Although petitioner alleges that the extension provided “inadequate short notice,” there is no evidence that petitioner raised such concerns to respondent or requested an additional extension of time.  In other words, if petitioner felt she did not have sufficient time to answer the committee’s questions, there is no basis in the record to find that respondent would have denied petitioner additional time to complete the questions.  In any event, even if the record supported a finding that petitioner was not afforded adequate time to complete her written statement, petitioner had ample opportunity to express her views to the committee at the November 20, 2017 meeting.  Therefore, there is no basis in the record to find that petitioner was denied a full and fair opportunity to provide information to the committee.

Next, petitioner challenges the structure of respondent’s process for considering religious exemption requests.  Petitioner specifically alleges that the committee improperly included “a building principal at a random other area school” instead of the principal of the school which her son attends.  As an initial matter, petitioner directs her challenges at the structure of the committee and alleges that “a random principal from another school and the school district attorney ... review[ed] her materials and ma[de] the decision.”  However, the record indicates that the committee makes a recommendation to the final decisionmaker, the superintendent, and thus serves a consultative function.  Prior Commissioner’s decisions have found consultative arrangements to be appropriate (see Appeal of I.M. and G.M., 50 Ed Dept Rep, Decision No. 16,164 [building principal’s consultation with school health coordinator found to be appropriate, finding that “nothing in the applicable law and regulations” prohibited the principal from doing so]).

With respect to the superintendent serving as decisionmaker, pursuant to State Education Department guidance issued in 2016, “[t]he building principal will be responsible for the review of each request for a religious exemption to immunization.  If, after review of the parental/guardian statement, questions remain about the existence of a sincerely held religious belief, Department of Health regulation [10 NYCRR §66-1.3(d)] permits the principal to request supporting documents” (emphasis added).  Section 66-1.3 of 10 NYCRR provides that:

A principal or person in charge of a school shall not admit a child to school unless a person in parental relation to the child has furnished the school with one of the following:

...

(d) ... a written and signed statement from the parent, parents or guardian of such child, stating that the parent, parents or guardian objects to their child's immunization because of sincere and genuine religious beliefs which prohibit the immunization of their child, in which case the principal or person in charge of the school may require supporting documents.

The Commissioner has previously found that, under certain circumstances, a superintendent or assistant superintendent’s consideration of an exemption request may be a prudent use of resources (Appeal of O.M. and R.M., 52 Ed Dept Rep, Decision No. 16,414 [not unreasonable for the assistant superintendent to render a determination following remand since the building principals had already denied the request and those individuals were no longer so employed]; Appeal of S.B., 48 id. 332, Decision No. 15,875 [superintendent’s decision to personally consider an exemption request in a circumstance involving more than one child and different schools was prudent use of resources]).

Here, I find that petitioner has failed to meet her burden of establishing that respondent’s process for considering immunization requests was arbitrary and capricious.  As noted above, the record indicates that DOH audited respondent’s district in 2016.  DOH found that respondent had been granting a large  number of religious exemptions, particularly at one of the district’s elementary schools and at its alternative community school.  As a result of this finding, respondent designed the committee process described above.  On this record, therefore, the fact that the superintendent made the determination as to the immunization request does not compel a finding that respondent acted arbitrarily or capriciously.  To the extent petitioner complains that the committee in her case did not include the student’s building principal – or that the ultimate decisionmaker, the superintendent, was not the building principal – the record reveals that respondent deliberately excluded the building principal of the requesting student’s school from serving on a committee when designing its process.  Caitlin Bram, building principal of Fall Creek Elementary School, explains the district’s reasoning in this respect:

I was one of the building principals who expressed strong support for the committee structure, because I believed it would depersonalize the religious exemption review process and ensure greater consistency.  Since many buildings in the District (including my own) have very high numbers of religious exemption applications compared to other buildings, I also believed the committee structure would ensure that each building principal was responsible for reviewing the same number of applications.

In light of the audit by DOH and respondent’s interest in ensuring that all of the schools in its district are compliant with PHL §2164 and are following a consistent procedure for consideration of religious exemption requests, I find that respondent’s procedure for considering religious exemption requests, which it followed here, was reasonable and a prudent use of resources.

Turning to the merits, 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’s general references to her faith and beliefs are insufficient to establish the religious basis or origin of her opposition to immunization (see Appeal of E.A., 58 Ed Dept Rep, Decision No. 17,530; Appeal of K.E., 48 id. 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Prior Commissioner’s decisions 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 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).

In her August 21, 2017 religious exemption request, petitioner stated that she objected to the “meningococcal vaccination of [her] child.”  She cited two Biblical verses and stated generally that her “child’s body is the temple of Spirit.  My personal spiritual belief prohibits the injection of foreign substances into our bodies,” which would be to “question the divine omnipotence” and “challenge [the] divine power.”  Petitioner stated that her objection was based on her “lifelong, deeply-held spiritual belief based on scripture.”

In her written responses to the committee’s questions, petitioner described her family’s religious history and her upbringing in the Presbyterian Church.  While petitioner explained that she is not a member of an organized religion, she noted that her “basic Christian faith has been reinforced by many spiritual teachings and readings” such as Ayurveda the Catechism of the Catholic Church.  She explained that, when she first vaccinated her child, “[i]t didn’t make sense,” but she “respect[ed] authority” and “never knew [she] had a choice.”  She again cited verses from the Bible and stated that the body is a temple of the Holy Spirit.

Petitioner also stated:

By allowing the injection of an attenuated (half-killed) virus or bacteria into the body, we have done something nature (GOD) would never allow.  We have violated the sanctity of the bloodstream.  The pure blood is now infected.  I cannot allow my child’s blood to be contaminated with decaying putrid substances anymore.  I have the obligation to raise him as God would because he and I are extensions of God.

                           ....    

Vaccines trick God’s own personal army creation, the immune system, into not mounting an all-out response to a foreign agent.  If the vaccine’s microorganisms were not attenuated, all the powers of the natural immune system would join together to repel and attack the invader.

In support of this position, petitioner quoted and cited a book entitled The Sanctity of Human Blood.  Petitioner then stated that she “believes this [assertion] to be true in the very core of [her] being.”  Principal Bram indicates in an affidavit that, with respect to whether petitioner held a religious opposition to immunization, petitioner’s citation to this book was a “red flag,” as the author of the book is “a chiropractor and holistic medicine practitioner who believes that vaccinations are unsound for scientific/medical reasons and that vaccines cause autism.”  However, in an affidavit on appeal, petitioner explains that her “awareness of the science and health implications was actually limited when [she] submitted [her exemption] application.  As I told the committee, I learned about a lot of the scientific concerns after applying for a religious exemption” (emphasis in original).

While the parties dispute the relevance of The Sanctity of Human Blood in this appeal, I note that the record nevertheless contains ample evidence supporting respondent’s determination that petitioner’s opposition to immunization is primarily health or safety-based.  For example, in addition to the statements described above, petitioner stated that vaccinations violate the sanctity of blood because “[v]accines ... contain animal parts including bovine calf serum and monkey kidney cells.  Many vaccines are grown on beef gelatin agar.”[3]  In the petition, petitioner also appears to assert that her objection to immunization is grounded in her opposition to abortion and, by extension, fetal tissue obtained from abortions.  While petitioner appears to contend 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 reflects a medical or philosophical concern, as opposed to a sincerely-held religious belief (see Appeal of D.R., 58 Ed Dept Rep, Decision No. 17,585; Appeal of R.R., 54 id., Decision No. 16,663).[4]

Moreover, the record further indicates that at the November 20, 2017 interview, petitioner made several assertions which suggest that her opposition to vaccination is primarily health or safety-based.  For example, petitioner stated that the assertion that, if one had been vaccinated, “the immune system is suppressed and it does not mount an all-out response to a foreign agent,” was “scientific fact.”  Petitioner further asserted that she has “learned a lot of information that vaccines are not safe,” citing examples where friends informed her “[t]hat there have been lots of cases where people have actually been injured and killed ... through the vaccines.”  Considering such statements and the record as a whole, I cannot find respondent’s determination that petitioner’s opposition to immunization was primarily health or safety-based to be arbitrary or capricious.[5]

While I do not doubt that petitioner is opposed to immunizations, I cannot find on this record that her general statements regarding the perfection of God and/or the immune system satisfy petitioner’s burden to demonstrate that her opposition to immunization is based upon sincerely-held religious beliefs (see Appeal of E.A., 58 Ed Dept Rep, Decision No. 17,530; Appeal of E.P. and L.P., 57 id., 17,310).  Ultimately, the crux of the issue is whether petitioner’s reasons for opposing immunization 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).  I find that, on this record, petitioner has failed to demonstrate that her opposition to immunization stems from sincerely-held religious beliefs or that respondent’s determination that petitioner’s concerns regarding immunizations were primarily health or safety-based 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, 17,310; Appeal of L.L., 54 id., Decision No. 16,670).

I have considered petitioner’s remaining contentions, including her unsubstantiated claims of bias and religious discrimination, and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] This attorney was not associated with the firm which represents petitioner in this appeal.

 

[2] The record reflects that petitioner received a version of the September 26, 2017 letter via email on October 3, 2017.  Petitioner does not mention the email transmission on appeal, although she acknowledges it in two letters to Principal Bram, which are part of the record on appeal, and has not explained why she could not begin preparing her response upon receipt of the electronic version of the letter.

 

[3] Principal Bram states in her affidavit that petitioner removed this statement from the version of the letter she submitted on appeal and “inserted a new line that was not previously shared with the District: vaccines contain ‘components like formaldehyde, carcinogenic liquid, aluminum, mercury which are called adjuvants or helpers.  Mercury (in the form of thermos) is known to cause nerve damage, auto immune disorders and cancer.’”

 

[4] Moreover, with respect to petitioner’s assertions in this regard, petitioner has failed to produce any evidence that the vaccination which the student requires contain such ingredients.

 

[5] Petitioner cites Appeal of L.K. (45 Ed Dept Rep 10, Decision No. 15,243) for the proposition that “where a parent’s religious beliefs were not exercised in the past, due to lack of knowledge that there is a law allowing them to follow their beliefs, or societal and familial pressures, this is sufficient explanation for the past vaccinations.”  However, in Appeal of L.K., unlike in the instant appeal, the Commissioner found that the “weight of the evidence support[ed] petitioner’s contentions” that her beliefs were primarily religious in nature and there was “no evidence in the record that petitioner’s position [was] based on philosophical, scientific, medical, or personal preference.”  While the Commissioner found that respondent “based its determination, in part, on irrelevant information that it solicited from petitioner,” the Commissioner found that “[p]etitioner did articulate a religious belief,” and the appeal was sustained because petitioner met her burden of proof, not due to the shortcomings in respondent’s analysis identified in the decision.