Decision No. 17,644
Appeal of C.M., on behalf of her son C.F., from action of the New York City Department of Education regarding immunization.
Decision No. 17644
(June 5, 2019)
Giulia Miller, Esq., attorney for petitioner
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, C.F. (“the student”), is 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, the student attends school in respondent’s district. By letter dated September 4, 2018, petitioner sought a religious exemption from immunization pursuant to PHL §2164 for the student. In the letter, petitioner stated, among other things, that “vaccination of our child violates the law set forth by God at the time of conception of a natural and spiritual body,” and that she “strongly believe[s] in allowing the body to maintain and heal itself naturally.”
By memorandum dated September 6, 2018, respondent’s health services manager in the Office of School Health (“OSH”) denied petitioner’s immunization exemption request on the ground that her documentation was “inadequate to warrant an exemption and does not substantiate a finding that [petitioner held] genuine, personal and sincere religious beliefs which are contrary to immunization.” The health services manager informed petitioner that she could appeal the determination by arranging an interview with respondent’s operational and program policy manager (“operational manager”).
The record indicates that petitioner met with the operational manager on October 4, 2018. According to the record, petitioner was instructed to prepare written responses to five questions set forth on a questionnaire provided by the operational manager. Petitioner asserts on appeal that she struggled to complete the responses on the questionnaire due to her dyslexia. The operational manager agreed to accept a written statement which petitioner had prepared prior to the meeting and instructed petitioner to write “see attached letter” to the questions on the questionnaire. Petitioner wrote “[p]lease see attached letter” in response to four of the questions and provided a written answer to the fifth.
By memorandum dated October 23, 2018, the health services manager informed petitioner that OSH denied petitioner’s appeal, stating that:
The documentation you submitted and the information provided during the appeal interview [did] not substantiate a finding that [petitioner held] genuine and sincere religious beliefs which are contrary to immunization.
This appeal ensued. Petitioner’s request for interim relief was denied on December 4, 2018.
Petitioner contends that her objections to immunization 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. Petitioner also raises complaints concerning respondent’s process for considering religious exemption requests from PHL §2164. Petitioner additionally asserts that she was treated rudely by the operational manager during her interview.
Respondent contends 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 several preliminary matters. Petitioner bases her request for relief, in part, upon her First Amendment rights. 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.
Next, petitioner challenges respondent’s procedure for consideration of religious exemption requests. Generally, petitioner complains, among other things, that respondent “directed [p]etitioner to proceed into a process that included a perfunctory ‘appeal interview’, in an apparent pretext to claim later that due process was observed by way of a ‘supporting documents’ request ....” I have considered and rejected substantially similar challenges to respondent’s process, and petitioner offers no reason to depart from the reasoning of those decisions (Appeal of H.G., 58 Ed Dept Rep, Decision No. 17,524; Appeal of a Student with a Disability, 58 id., Decision No. 17,495). The record demonstrates that the procedure which respondent employed in this case provided petitioner the process which she was due under PHL §2164 and that respondent, in conformity with PHL §2164, considered and denied petitioner’s written request. Therefore, petitioner’s objections in this respect are without merit.
Petitioner also asserts that respondent’s operational manager was rude and inconsiderate during the October 4, 2018 appeal meeting. Specifically, petitioner contends that she had informed respondent prior to the meeting that she had dyslexia; that the interview meeting was conducted initially in a crowded lobby and later in a cafeteria, and that both environments were noisy and caused petitioner to be distracted and anxious; that the operational manager was inconsiderate to her and failed to accommodate her disability; and that she felt pressured and intimidated during the interview process. Respondent does not respond to these allegations, other than to state that it “[d]enies knowledge or information sufficient to form a belief as to the truth of the allegations.”
On this record, I cannot find that petitioner suffered any prejudice with respect to her religious exemption request as a result of the alleged conduct by the operational manager. According to the record, the operational manager allowed petitioner to submit a written statement which she had previously prepared and instructed her to write “see attached letter” on the questionnaire. Although petitioner claims that she was unable to engage in “rational thought” during the interview due to the operational manager’s alleged misconduct, any potential prejudice arising therefrom was mitigated by the fact that petitioner was allowed to submit a written response which she had previously prepared. The record reflects that the health services manager considered this written response in connection with petitioner’s appeal. Thus, petitioner has not proven that any actions alleged to have been taken by the operational manager deprived her of a full and fair opportunity to present her claims at the local level.
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 quotes 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, the health services manager’s September 6 and October 23, 2018 memoranda essentially stated that petitioner failed to demonstrate sincerely-held religious beliefs which are contrary to immunization. Respondent variously states in its answer, based upon the health services manager’s affidavit, that petitioner had failed to provide supporting documentation “sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations” and particularly failed to explain why prior vaccinations did not violate her religious beliefs; that petitioner’s description of her religious beliefs “was perfunctory, generalized and failed to convey a sincere religious opposition to vaccinations”; that petitioner failed to establish a clear nexus between her religious beliefs and her opposition to vaccinations; that petitioner’s objections “seemed to be rooted in philosophical and pseudo-scientific bases”; that petitioner had not objected to vaccinations in the past and did not describe “a notable intervening event” that might explain the change in her beliefs; and that petitioner’s additional written statement submitted at the appeal interview demonstrated that concerns other than religion underlie petitioner’s opposition to vaccinations.
On this record, I find that respondent has articulated a sufficient rationale for its determination in this appeal to make a remand unnecessary. In any event, petitioner has had ample opportunity to respond to respondent’s reasons for its denial in this appeal and has done so (see Appeal of H.G., 58 Ed Dept Rep, Decision No. 17,524; Appeal of a Student with a Disability, 57 id., Decision No. 17,169). Accordingly, I will not sustain the appeal in part and remand 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.
Turning to the merits, proof of immunization against certain diseases is generally required for a child to be admitted to school (PHL §2164). 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).
The determination of whether petitioners qualify for a religious exemption requires the careful consideration of two factors: whether petitioners’ purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely-held (see 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 Dist., 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875). 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 their child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of their 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 documentation (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 petitioners’ statements and may consider petitioners’ 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).
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, respondent asserts that the student’s history of vaccination supports a finding that petitioner’s claimed opposition to vaccination is not genuine or sincerely-held. According to the record, respondent’s health services manager considered the student’s prior immunization history as one factor in denying petitioner’s religious exemption request. Courts have consistently held that the fact that a petitioner’s children were immunized in the past is not necessarily dispositive in determining whether the individual has genuine and sincere religious beliefs (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250), although it does have a bearing on the 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 App’x 16, cert. denied, 133 SCt 1997). The paramount question in investigating an individual’s sincerity is whether he or she “acts in a manner inconsistent” with his or her asserted belief (Lewis v. Sobol, 710 FSupp 506, quoting Int’l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F2d 430).
According to the record, the student received vaccinations up until 2015. Petitioner admits that the student received vaccinations until this time, but asserts that she had a change of heart in 2015 based upon two events. First, petitioner alleges that she spoke with her sister-in-law, who enlightened petitioner as to the ingredients contained in vaccines and informed her that other Greek-Orthodox parishioners opposed vaccination. Second, petitioner indicates that a close friend from her church invited her to a Bible study class. Petitioner alleges that she attended the Bible study class, where she learned the importance of Bible study and that, based on her subsequent study of scripture, her faith, including her opposition to vaccination, was strengthened.
The health services manager indicates that he did not find petitioner’s explanation credible because she failed to “describe a notable intervening event that might explain an alteration in her belief.” While I agree with respondent that petitioner’s explanation of her change of heart is not compelling, respondent has not offered any evidence which contradicts petitioner’s explanation of her change of heart, particularly with regard to her assertion that she first learned from her sister-in-law in May 2015 about the ingredients in vaccines and that others in the Greek-Orthodox faith oppose immunization; specifically, respondent has failed to explain why petitioner’s explanation is not credible. Therefore, on this record, I find that petitioner’s change of heart concerning vaccination does not evince a lack of sincerity or diminish the sincerity of petitioner’s religious beliefs.
However, upon careful consideration of the entire record, I nevertheless find that petitioner’s general references to her faith and beliefs in her written submissions to respondent are insufficient to establish the religious basis or origin of her opposition to immunization (see Appeal of K.E., 48 Ed Dept Rep 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 initial exemption request, petitioner quoted scripture in support of the proposition that humans, “at the time of conception,” possess “a natural and spiritual body.” Similarly, in her additional written statement, petitioner stated that the bodies of the student and his sibling “are temples of the Holy Spirit” and that “a person’s body is pure, exactly the way God made it.” I find that these general statements concerning the perfection of the human body are insufficient to establish a sincere and genuinely-held religious opposition to immunization (see Appeal of E.P. and L.P., 57 Ed Dept Rep, Decision No. 17,310).
Additionally, although petitioner indicates that she opposes vaccines because “some” vaccines contain “human diploid cells” which are derived from “aborted human fetuses,” she appears to oppose all vaccines irrespective of whether they derive from fetal material. This position undercuts her argument that her opposition to immunization is actually religious in nature (see Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; cf. Appeal of N.C., 55 id., Decision No. 16,805).
Moreover, petitioner has not proven a nexus between the ingredients to which she objects and the vaccinations which the student requires. In the petition, petitioner states that “the vaccines that [the student] has not received all contain some form of animal byproduct or human cells.” However, although petitioner lists the ingredients of three vaccinations in paragraph 46 of her petition and attaches a “Vaccine Excipient & Media Summary” form published by the Centers for Disease Control and Prevention in June 2018, it is unclear whether the vaccinations petitioner identifies in the petition are, in fact, required by the student. Therefore, on this record, petitioner has failed to establish a nexus between the vaccinations the student requires and the ingredients to which she objects (see Appeal of M.B. and W.D., 57 Ed Dept Rep, Decision No. 17,425; Appeal of N.I., 57 id., Decision No. 17,176).
I further find petitioner’s asserted belief in the perfection of the human body and immune system to be inconsistent with other statements made by petitioner in the record. As indicated above, in her initial exemption request, petitioner indicated that she “strongly believe[s] in allowing the body to maintain and heal itself naturally.” Similarly, in her additional written statement, petitioner stated: “I believe that God made our bodies to be capable of fighting against diseases on its [sic] own” and that “God gave our bodies the ability to heal itself [sic] ... through Him and for the greater glory of Him.”
However, in her additional written statement, petitioner stated that she “believe[s] in medicine and medical intervention to help heal a sick body” and admitted that, following surgery for thyroid cancer, she took and continues to take “medication that substitutes for [her] thyroid.” Petitioner further explained her views on the interaction of medicine and God as follows:
While the surgery removed the thyroid cancer and healed me, God prevented the cancer from spreading and allowed me to know early enough where having surgery made a difference. How else can we explain the reason some people get healed and others do not even though they have the same disease and elected the same medical intervention. The reason, I believe, is that God is the ultimate Physician and only with God everything is possible.
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, although petitioner has attempted to couch her beliefs in terms of reactive versus proactive medicine, I cannot find respondent’s conclusion that petitioner’s contentions are inconsistent to be arbitrary or capricious. On the one hand, petitioner has stated that the human body is perfect and “capable of fighting against diseases on its own ... through Him and for the greater glory of Him.” Petitioner cites her own faith as the reason for her early diagnosis and successful treatment of thyroid cancer. On the other hand, petitioner admits that she took, and continues to take, thyroid medication after she was “healed” from her surgery. If petitioner was “healed” as she suggests, any subsequent medication would serve a proactive, rather than a reactive, function (Lewis, et al. v. Sobol, et al., 710 FSupp 506). Moreover, in her additional statement, petitioner asserts:
Vaccines are unnatural and do not come from God. The ingredients of many vaccines show that they are produced from animal blood cells, bacteria, virus, or other microorganisms that can cause disease from animals such as chicken embryos and many other foreign materials .... To pollute the blood is a sin. To inject these impure substances into my children’s blood violates the bedrock of my faith.
Thus, petitioner asserts that “[i]njecting a vaccine is putting something foreign into a child’s healthy body,” but has not explained how the thyroid medication she is taking does not constitute a “foreign substance.” I find that such inconsistency undermines petitioner’s contention that she acts in accordance with a religious belief (N.M. v. Hebrew Acad. Long Beach, 155 FSupp3d 247 [finding, for purposes of a preliminary injunction, that a parent demonstrated a “selective personal belief” concerning proactive medicine, as evidenced by the fact that she “permit[ted] Novocaine to be injected into her body by a dentist,” which “undermin[ed] her objection to foreign impure substances being inoculated into the body”]). Given these assertions, I find no basis upon which to overturn respondent’s determination that petitioner’s statements with respect to the conditions upon which she would consent to medical treatment were inconsistent.
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 App’x 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. The appeal, therefore, must be dismissed.
In light of this disposition, I need not consider the parties’ remaining contentions.
END OF FILE
 To the extent petitioner contends that respondent failed to provide her with a reasonable accommodation for her disability and thereby discriminated against her in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), I have no jurisdiction over such claim. Enforcement of Section 504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of C.C. and E.C., 48 id. 528, Decision No. 15,938; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806). I also lack jurisdiction over any claims brought under the American With Disabilities Act (“ADA”). An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeal of the Board of Education of the City School District of the City of Rye, 53 Ed Dept Rep, Decision No. 16,513; Appeals of a Student Suspected of Having a Disability, 46 id. 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636).
 The record suggests that the operational manager is a DOE employee and respondent has offered no explanation as to why it could not obtain sufficient information to admit or deny petitioner’s allegations in this respect. Respondent is advised to make reasonable efforts in the future to learn the facts necessary to prepare a meaningful response to allegations regarding its employees (see e.g. Appeal of a Student Suspected of Having a Disability, 57 Ed Dept Rep, Decision No. 17,261; Appeal of Curry, 55 id., Decision No. 16,795; Appeal of Walker, et al., 53 id., Decision No. 16,609).
 The appropriate remedy for a district’s failure to provide specific reasons for its denial of an exemption request would be to remand the matter for development of a record sufficient to conclude that the petitioner is or is not entitled to a religious exemption, not, as petitioner suggests, to grant an exemption to which petitioner may not be entitled (see e.g. Appeal of M.S., 58 Ed Dept Rep, Decision No. 17,572).
 In this respect, I note that petitioner only alleges that one of the three vaccinations which the student requires contains human diploid cells and acknowledges that she “know[s] and understand[s] that not all vaccines contain fetal tissue ....”
 Therefore, unlike the plaintiffs in Lewis, et al. v. Sobol, et al. (710 FSupp 506), petitioner has failed to adequately articulate a belief system which reconciles these inconsistencies (see Lewis, et al. v. Sobol, et al., 710 FSupp 506 [finding parents’ articulation of a distinction between proactive and reactive medicine to be credible, where a parent testified, in relevant part, that “when I am ill it is an indication to me that I have become spiritually imbalanced, that I have not been following my path, and the same for my child.”]).