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Decision No. 13,392

Appeal of SHERYL SWETT, on behalf of her daughter MELYSSA SWETT, from action of the Board of Education of the Corning-Painted Post School District regarding exclusion from school due to lack of immunization.

Decision No. 13,392

(April 6, 1995)

Welch & Welch, Esqs., attorneys for petitioner, John A. Brasley, Esq., of counsel

Sayles, Evans, Brayton, Palmer & Tifft, Esqs., attorneys for respondent, Donna M. Hutchinson, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her child must be immunized pursuant to Public Health Law '2164 to continue attending school. The appeal must be dismissed.

Petitioner enrolled her daughter, Melyssa, in kindergarten at the Calvin U. Smith School in respondent's district. On September 7, 1994, the school principal sent petitioner a letter informing her that, according to the school's registration records and information she provided to a school employee, Melyssa did not have the proper immunizations to enter school. The letter also stated that the school physician required written verification from petitioner's doctor of appointment dates to begin Melyssa's immunizations. The principal instructed petitioner to keep Melyssa home until she could provide that information.

The parties apparently disagree about the substance and chronology of conversations between petitioner and school personnel regarding Melyssa's immunizations. The parties do agree, however, that prior to the September 7, 1994 letter, petitioner returned Melyssa's school registration form with a note explaining her opposition to immunization and referencing vaccine injury compensation, AIDS and HIV. Following receipt of the registration form in late August, school officials contacted petitioner. Although respondent claims school officials informed petitioner about Melyssa's incomplete immunization data at that time, petitioner claims that only Melyssa's birth certificate was requested and that there was no mention of immunization. On September 6, 1994, the school nurse contacted petitioner and advised her that she had to bring Melyssa's immunization record with her to school on September 7. After petitioner failed to provide that information on September 7, respondent wrote a letter instructing petitioner to keep Melyssa home.

On September 8, 1994, petitioner presented the school with evidence of a scheduled doctor's appointment for September 20, and Melyssa was allowed to return to school. However, Melyssa was not immunized at that appointment. Petitioner asserts that she instead discussed her beliefs and the need for an exemption with Melyssa's doctor, who advised her that, based on her beliefs, she should consult with a lawyer. On September 27, petitioner delivered a copy of Melyssa's physical examination to the school nurse and promised that she was attempting to obtain an exemption. School officials contend that petitioner promised to provide immunization information before the end of the day. On September 28, when proof of Melyssa's immunization was not forthcoming, the principal informed petitioner that Melyssa could not return to school. Also on September 28, Melyssa's doctor informed school officials that there was no medical reason to prevent Melyssa from being immunized. This appeal ensued. On October 20, 1994, petitioner's request for interim relief was denied.

Under Education Law '914, each school shall require every child to provide proof of immunization in accordance with Public Health Law '2164. Section 2164 requires parents to have their children immunized against certain diseases. As stated in Appeal of McGann (32 Ed Dept Rep 187):

The Legislature enacted this statute after determining that immunization is effective and safe. The purpose of immunization is to protect children who are immunized as well as the health and economic well-being of the community (Section 1 of L. 1968, c. 1094). In every case the needs of the State must be balanced with the needs of the individual....

There are two exceptions to the immunization requirement. Under '2164(8), if a licensed physician certifies that immunization may be detrimental to a child's health, the requirement does not apply. Petitioner does not claim that a physician has determined that the required immunization might prove harmful to her daughter. Thus, the medical exemption does not apply in this case.

The second exemption is provided under '2164(9), which states that:

This section shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school.

As originally enacted, '2164(9) provided an exemption only for children whose parents or guardians were "bona fide members of a recognized religious organization whose teachings are contrary to the practices of inoculation." In 1990, however, '2164(9) was amended to its current form cited above to allow an exemption for a child whose parent holds a "genuine and sincere religious belief" against inoculation (SeeSherr v. Northport-East Northport UFSD, 672 F.Supp. 81). Thus, the issue is whether petitioner's opposition to immunization stems from sincerely held religious beliefs.

Petitioner contends that she opposes immunization and medicine in general, arguing that she is a vegetarian, was never immunized and has never taken any medication. She asserts that God will take care of her. Moreover, petitioner alleges that she has not consented to vaccination because she lost her first child at childbirth in 1985 after a reaction to an intravenous injection. As a result of this traumatic experience, petitioner is wary of any intravenous penetration into her childrens' bodies. She believes that allowing such vaccinations would be morally and ethically wrong and contrary to her personal religious beliefs. She states that she never made any promise to school officials to get Melyssa immunized, and would only change her mind if she received written verification of the safety of the vaccination.

Following respondent's September 28 letter instructing her to keep Melyssa home, petitioner wrote on September 30, 1994 to the supervisor of pupil services that she has "religious beliefs and convictions" against immunization "because I feel that God will look over my children and protect them from harm. If someone could guarantee me that immunizations would have no harmful effects, I would have Melyssa immunized. However, no one can do that. Therefore, I must trust in God and believe he will protect Melyssa from harm." Petitioner asserts that school officials then instructed her that all communication would have to be between the lawyers.

Whether a religious belief is sincerely held is a difficult factual determination which must be made, in the first instance, by school district officials. As the court stated in Sherr v. Northport-East Northport UFSD, supra, "the courts have left no doubt that society's compelling interest in preventing disease must override any personal opposition to immunization that some citizens may possess." Thus, in making this determination, school officials must make a good faith effort to assess the credibility of petitioner's statements and sincerity (Appeal of McGann, supra). While they are not required to simply accept a statement of religious belief without some examination (id.), they similarly should not simply reject a statement without further examination. As stated in Matter of Christine M, 157 Misc 2d 4, 16:

... in order to be afforded an exemption from immunization a parent must not only demonstrate a religious belief contrary to inoculation but must also demonstrate that the espoused belief is genuinely and sincerely held and as such forms the basis for the objection to vaccination. In other words, even if the espoused belief accurately reflects a parent's ultimate conclusion about the advisability of inoculation, the opposition to inoculation nonetheless must "stem from religious convictions and have not merely been framed in terms of religious belief so as to gain the legal remedy desired." (Matter of Sherr v Northport-E. Northport Union Free School Dist., supra, 672 F Supp, at 94.)

In this case, respondent concluded that petitioner's beliefs were not religious in nature, but rather stemmed from her perception of the potential medical consequences of inoculation. The record shows that school officials made this determination after they communicated verbally or in writing with petitioner on at least six different occasions: in late August, September 6, September 7, mid September after Melyssa's doctor appointment, September 27 and September 28. Respondent claims that petitioner at no time expressed to representatives of the school district that her refusal to have Melyssa immunized was founded on religious conviction. Rather, respondent asserts that petitioner expressed only her unfounded fear that the immunizations would injure Melyssa. Moreover, respondent alleges that petitioner kept reassuring the school that Melyssa would be immunized. In addition, respondent asserts that on one occasion, petitioner requested that she be provided with a list of religious affiliations that were opposed to the use of immunizations. On these facts, respondent concluded that petitioner had failed to demonstrate that her concerns were founded on genuine and sincere religious beliefs.

In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Corbett, 34 Ed Dept Rep 138; Appeal of Singh, 30 id. 284). In other words, to prevail, petitioner must demonstrate that respondent's determination was arbitrary and capricious. While petitioner has demonstrated a sincerity in her beliefs, the record does not support a finding that petitioner's opposition to immunization is based on religious beliefs. To the contrary, the record indicates that petitioner's opposition is based on the perceived harmful medical consequences of inoculation. Petitioner repeatedly emphasized the "harmful effects" of immunization and sought "written verification of the safety of the vaccination." Petitioner presented no other evidence or verification of her religious beliefs despite numerous communications with respondent. Accordingly, respondent's conclusion, that petitioner's beliefs are not religious in nature, is reasonable in light of the facts presented.