* Subsequent History: Matter of Palma v New York State Educ. Dept.; Supreme Court, Albany County; Judgment dismissed petition to review; July 24, 2008. *

Appeal of R.P. and R.P., on behalf of their son L.P., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding immunization.

Decision No. 15,648

(August 28, 2007)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Bayport-Blue Point Union Free School District ("respondent") that their son, L.P., is not entitled to an exemption from the immunization requirements under Public Health Law ("PHL") §2164. The appeal must be dismissed.

In 2005, Mrs. P registered L.P. for kindergarten in respondent’s district commencing September 2005.  The record contains a copy of three Vaccine Administration Records (“VAR”) for L.P.  One VAR is from L.P.’s former pediatrician’s office (West Sayville Pediatrics) indicating that he lacked the MMR and third hepatitis-B (“hep-B”) immunizations required for admission to kindergarten.  According to the school nurse, Mrs. P brought the VAR with her at the time of registration and the nurse informed Mrs. P. that L.P. still needed both immunizations.  Mrs. P. denies bringing the VAR or discussing immunizations with the nurse.  She instead asserts that the VAR was sent directly from the doctor’s office to the school, that the nurse was not present at registration, and that she was unaware that L.P. needed further immunizations.  Mrs. P. admits, however, that on separate dates in August 2005, L.P. received a second MMR and a fourth DPT immunization (which is not required for kindergarten admission), but did not receive the third hep-B.

According to the nurse’s affidavit, in June 2006 she noticed that the date on L.P.’s VAR for the third hep-B was unclear, so she telephoned the doctor’s office (a different pediatrician) for clarification. She was informed by the office that L.P. had never been given the third hep-B.  Apparently, the doctor’s office subsequently sent to the school a third VAR that had no date indicated in the box for the third hep-B.  The parties do not dispute that the school nurse then telephoned Mrs. P. and informed her that L.P.’s VAR showed him missing the third hep-B, and Mrs. P. informed the nurse that she and her husband were no longer vaccinating their children.  The nurse informed Mrs. P. that she would have to write to the superintendent.

By letter dated August 9, 2006, respondent’s superintendent informed Mrs. P. that district records showed that L.P. had not received all required immunizations.  The superintendent requested that Mrs. P. provide proof of immunization to the principal of the Academy Street Elementary School, which L.P attended, to insure that he could return to school in September 2006.  The superintendent also informed Mrs. P. that, if she wished to claim a religious exemption for L.P., she should do so in writing as soon as possible.

By letter to the superintendent dated August 16, 2006, petitioners requested an exemption from the immunization requirement for L.P., stating:

[We] hold genuine and sincere personal religious beliefs which are inconsistent with these medical procedures.  The practice of vaccination is contrary to our conscientiously held religious beliefs and practices, and violates the free exercise of our religious principles.  By declaring that we hold such convictions and presenting them in writing to you, we are complying with the immunization exemption provisions of NYS Public Health Law 2164 Sub. 9. .... It is a violation of the Establishment Clause of the First Amendment to the Constitution for any institution representing government, to inquire into the details of one’s religious beliefs for the purpose of determining the truthfulness or genuineness of said beliefs.

Petitioners attached a signed and notarized copy of the “Request for Religious Exemption to Immunization Form-Parent/Guardian Statement” (“form”) from the State Education Department’s (“Department”) website, but did not submit any further information or statements describing their religious beliefs.  Rather, they used the form to state constitutional objections to the law requiring immunizations as a condition to attending public school.

By letter dated August 21, 2006, the superintendent notified petitioners of the district’s right to inquire about their religious beliefs and requested a meeting with petitioners, the district’s counsel and the assistant superintendent for curriculum, instruction, and general administration.  A two-hour meeting eventually occurred on September 18, 2006, at which the district representatives, petitioners and their then-attorney were present.  The meeting was apparently recorded, but neither party has provided a copy of the recording or transcript in this appeal.  L.P. was permitted to begin school even though the issue had not been resolved.

By letter dated September 22, 2006, the superintendent notified petitioners that respondent intended to consider their exemption request at its September 27, 2006 meeting.  He informed them