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Decision No. 15,094

Appeal of D.K., on behalf of his son C.K., from action of the Board of Education of the Starpoint Central School District regarding exclusion from school due to the lack of immunization.


Decision No. 15094


(August 10, 2004)


Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel


     MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Starpoint Central School District ("respondent") that his son is not entitled to an exemption from the immunization requirement under Public Health Law ("PHL") "2164.  The appeal must be dismissed.

     Petitioner resides outside of respondent"s district.  His son, C.K., resides with C.K."s mother in respondent"s district. In April 2003, petitioner contacted the district about enrolling C.K. in September 2003.   He requested that his son be allowed to attend school without the immunizations required by PHL "2164.  PHL "2164(9) provides:

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.

     On August 6, 2003, respondent"s elementary school principal and attorney met with petitioner to ascertain the basis for his request.  After hearing petitioner"s arguments for a religious exemption and reviewing the information he provided in support of his request, the principal denied an exemption by letter dated August 11, 2003 because she determined that petitioner"s opposition to immunization was "not religious in nature as required by the statute." Petitioner"s request for interim relief was denied on September 8, 2003.

     Petitioner contends that his objections to immunizations are based on sincerely held religious beliefs and seeks an order reversing respondent"s decision to exclude his son from school.

     Respondent maintains that the petition should be dismissed because petitioner is not a district resident and he failed to join C.K."s mother as a necessary party. Respondent further argues that petitioner"s objections to immunizations are not based on sincerely held religious beliefs, but rather on personal, philosophical and medical beliefs and, therefore, he failed to meet his burden of proof. 

Respondent objects to petitioner"s reply on the grounds that it was not timely submitted or properly served.  The record reflects that my Office of Counsel granted petitioner"s request for an extension of time to file his reply until October 7, 2003 and that petitioner served his reply on that date.  Accordingly, I find that the reply was timely served (Appeal of Campbell, 40 Ed Dept Rep 417, Decision No. 14,515; Appeal of Shaver, 38 id. 570, Decision No. 14,096).  In addition, "275.8(b) of the Commissioner"s regulations requires a party to serve all pleadings and papers subsequent to the petition on the adverse party"s counsel.  Although petitioner"s service of his reply papers on the district clerk was improper, I will excuse petitioner"s mistake as he is not represented by counsel and respondent was not prejudiced thereby (Appeal of Mennella, 39 Ed Dept Rep 306, Decision No. 14,245).

     I reject respondent"s assertion that petitioner is not a proper party to this proceeding and that C.K."s mother is a necessary party. PHL "2164(7)(b) states, "A parent, a guardian or any other person in parental relationship to a child denied school entrance or attendance may appeal by petition to the commissioner of education in accordance with the provisions of section three hundred ten of the education law."  Petitioner shares legal custody of C.K. and provided a statement in support of his position from C.K."s mother.  Therefore, I decline to dismiss the appeal on this basis.

     The issue in this appeal is whether petitioner"s opposition to immunization stems from sincerely held religious beliefs.  The exemption from immunization 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 Ed. of the City of New York, 116 F Supp 2d 503).  However, it is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation (Sherr v. Northport-East Northport Union Free School Dist., 672 F Supp 81).  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 Quigley, 41 Ed Dept Rep 399, Decision No. 14,724; Appeal of Bork, 39 id. 549, Decision No. 14,307; Appeal of Murphy, 34 id. 648, Decision No. 13,439). In making this determination, school officials must make a good faith effort to assess the credibility of petitioner"s statements and sincerity and may consider petitioner"s demeanor and forthrightness (Appeal of Quigley, supra).  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 Murphy, supra).

     In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Garmaeva, 43 Ed Dept Rep ___, Decision No. 14,988; Appeal of Goldin, 43 id. ___, Decision No. 14,904).  In this appeal, the principal and respondent"s attorney gave petitioner an opportunity to explain his position. Petitioner states that he is a practicing Unitarian and that he is trained in Reiki. He meditates and prays on a daily basis and has listened to audiotapes produced by an organization entitled the Aladdin Fellowship for 27 years.  He states that he has "the sincere belief that disease is not a natural state of our bodies, and that perfect health is an expression of being in harmony with our divine nature.... Part of this process involves releasing disease from our bodies, rather than suppressing it." 

After affording petitioner an opportunity to explain his beliefs, and after assessing his credibility, respondent"s administrators found that petitioner failed to articulate the religious basis or origin of his beliefs.  Instead, they concluded that petitioner"s opposition to immunization is rooted in personal theories, philosophy, a fear of medical science and preference for holistic medicine. 

Although petitioner"s opposition to immunizations may be sincere, it did not appear to school officials that his opposition is religious in nature as required by the statute.  Based on the record before me, I cannot find that respondent"s determination was arbitrary or capricious.