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Decision No. 15,792

Appeal of K.E., on behalf of her son W.E., from action of the Board of Education of the Palmyra-Macedon Central School District regarding immunization.

Decision No. 15,792

(July 25, 2008)

Joyce B. Berkowitz, Esq., attorney for petitioner

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Palmyra-Macedon Central School District (“respondent”) that her son, W.E., is not entitled to an exemption from the immunization requirements under Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In September 2005, the principal of respondent’s Macedon Elementary School granted W.E. a religious exemption from the chicken pox vaccine.  In September 2007, W.E. entered respondent’s middle school.  At the request of the middle school principal (“principal”), petitioner submitted a signed and notarized copy of the State Education Department’s (“Department”) “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”) on September 17, 2007, stating:

I am requesting religious exemption [and] object to immunizations on the religious principle that it is my sincere [and] genuine religious belief they are detrimental to health [and] purity of body, mind, [and] spirit.  This applies to all immunizations but is ultimately left to the individual in keeping with the individual’s God-given right of free will.

By letter dated September 24, 2007, the principal noted that W.E. had been previously immunized and requested that petitioner provide a “more detailed response regarding the religious basis” for her exemption request by October 9, 2007.  Specifically, the principal requested an explanation of the “doctrine/beliefs that prohibit immunization.”

In response to the principal’s request, petitioner submitted a form affidavit from the Innerspace University Church (“Innerspace”) describing the religious beliefs of Innerspace members:

God created us – spirit, mind and body.  As we strive to purify the spirit we also strive to purify and keep pure the body.  The body is inseparable in its interrelatedness from the mind and spirit while in the material world as a physically manifested being.  It is therefore necessary to maintain the purity of the body.  Maintaining the purity of body is interpreted by each individual by the dictates of his or her consciousness and of course may change as consciousness evolves....

A healthy sound body resists disease – it is the basic policy of this church to encourage practices which promote a healthy mind, body and spirit.  Therefore, certain foods, drinks, medicines, immunizations, medical procedures are against the ideals and beliefs of this Church.  However, the decision to use such items and procedures ultimately lies with the individual church member.   This is in keeping with the individual’s GOD-given right of free will.

On October 18, 2007, petitioner met with the principal and superintendent.  The parties disagree on what transpired at the meeting.  Petitioner claims that she provided a clear explanation of and “asked for the opportunity to demonstrate” her religious beliefs that are contrary to the immunization requirements.  Petitioner also alleges that during this meeting the principal and superintendent laughed at her and “asked about irrelevant topics such as medical concerns and my dietary habits in the context of medical questions, and the existence of the Church.”  Respondent denies petitioner’s account of the meeting, and contends that petitioner did not clearly explain her religious beliefs that are contrary to the immunization requirements.

By letter dated October 23, 2007, the principal denied petitioner’s request for a religious exemption on the grounds that petitioner’s objections “as presented appear medical or philosophical in nature rather than religious.”

On or about October 9, 2007, petitioner submitted a request to respondent for a “stay” of the principal’s decision.  Petitioner claims that respondent “refused to consider” her request at its November 13, 2007 meeting and that the superintendent “said it was a waste of time.”  Respondent denies these allegations and submits a letter from the superintendent to petitioner dated November 14, 2007, in which the superintendent stated that petitioner addressed the board during the public session at its November 13, 2007 meeting.  The superintendent also wrote that at that meeting, the board president stated that he “would be happy to listen to [petitioner] but was unable to make comment as the matter was a course of litigation being handled by the District’s legal counsel.”[1]

This appeal ensued.  Petitioner’s request for interim relief was denied on November 30, 2007.

Petitioner claims that W.E. is entitled to an exemption from the immunization requirements based on “religious belief” and the fact that the “District previously granted this exemption.”  She seeks W.E.’s admission to respondent’s schools and an exemption from immunization until he turns 21 or graduates with a high school diploma.

Respondent contends that petitioner’s objections to immunizations are not based on sincerely held religious beliefs and that its denial of a religious exemption is neither arbitrary nor capricious.

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, subdivision 9 of that section 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.

The determination of whether W.E. qualifies for a religious exemption requires the careful consideration of two factors:  whether petitioner’s purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (seeFarina v. Bd. of Educ. of the City of New York, et al., 116 F Supp 2d 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 F Supp 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 F Supp 2d 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 R.P. and R.P., 47 Ed Dept Rep 124, Decision No. 15,648; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310; Appeal of L.K., 45 id. 10, Decision No. 15,243).  A parent/guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent/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 may request supporting documents (10 NYCRR §66-1.3[d]).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

In support of her claim that her opposition to immunizations stems from her sincerely held religious beliefs, petitioner asserts that she has lived a “Bible-based life since the age of 13” and has been a member of Innerspace since 2005.  She also claims that she “regularly attend[s] church services with [W.E.] twice a week ... [is] raising W.E. in the church and provid[ing] him with regular religious training including youth Bible study, family devotions nightly, grace before meals, and discussion about scripture at meals.”  Petitioner cites several Bible passages in support of her claimed religious opposition to immunizations[2] and submits several documents from Innerspace, including one describing the church as an “eclectic, ecumenical, and evolutionary fellowship, providing its members with a context in which to progress, evolve, and grow.”  The document also states that Innerspace “is a church without walls” and the record indicates that petitioner participates in the church via the Internet.

I note that the form petitioner submitted to respondent requesting a religious exemption requires that she address why she is requesting the religious exemption, a description of the religious principals that guide the objection to immunization, and whether she is opposed to all immunizations, and if not, the religious basis that prohibits particular immunizations.  However, in response to these questions, petitioner provided no explanation or description of her religious beliefs and merely stated that “all immunizations” are “detrimental to health [and] purity of body, mind, [and] spirit.”

In addition, the documents petitioner has submitted describing Innerspace’s statement of purpose and articles of religion state only that “certain” immunizations are “against the ideals and beliefs of this Church.”  While petitioner states that she opposes “all immunizations,” there is no indication in the record that the doctrines of petitioner’s religion prohibit the use of any or all immunizations.  Rather, Innerspace’s doctrines hold that the “decision to use such items and procedures ultimately lies with the individual church member.”

As a result, the record of evidence does not support petitioner’s contention that she holds sincere religious beliefs against immunization.  My decision is not based on the fact that petitioner previously immunized W.E.  The fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of R.P. and R.P., 47 Ed Dept Rep 124, Decision No. 15,648).  Rather, I find that petitioner’s general statements that all immunizations are “detrimental to health [and] purity of body, mind, [and] spirit” are insufficient to articulate the religious basis or origin of her beliefs (seeAppeal of R.P. and R.P., 47 Ed Dept Rep 124, Decision No. 15,648).  Moreover, petitioner’s own statement that, according to Innerspace doctrine, decisions on whether to use immunizations are “ultimately left to the individual in keeping with the individual’s God-given right of free will” is clear evidence that her opposition to immunizations is based on her own personal, rather than religious, beliefs.  Accordingly, I find that respondent’s determination was rational, reasonable and consistent with law.

Finally, petitioner claims that respondent erred in denying her exemption request because the “District previously granted this exemption.”  However, the fact that the principal of W.E.’s elementary school allowed him to attend school without being immunized does not prevent respondent from conducting a separate inquiry or from ensuring compliance with the statute, especially where an initial inquiry was never conducted (Appeal of Quigley, 41 Ed Dept Rep 399, Decision No. 14,724).  Indeed, respondent has submitted an affidavit from the superintendent explaining that an inquiry was conducted in this case based on (1) his belief that the elementary school principal “conducted no inquiry as to the nature or sincerity of [petitioner’s] religious beliefs before granting her an exemption” in 2005, and (2) the fact that new immunization requirements regarding middle-school students took effect on September 1, 2007.  Moreover, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Quigley, 41 Ed Dept Rep 399; Decision No. 14,724; Appeal of Fuller, 41 id. 86, Decision No. 14,623).



[1] On October 29, 2007, petitioner attempted to file appeal papers with my Office of Counsel.  Those papers were returned to petitioner on October 29, 2007, by the office’s Appeals Coordinator, who advised petitioner that the papers did not comply with the requirements of §§275.8 and 275.9 of the Commissioner’s regulations.

[2] In her petition, K.E. states: “Among the Scriptural sources that K.E. believes supports her position against immunizations and her right to protect her child from harm are:  Psalm 127:3 (children are a gift from G-d [sic]), I Timothy 5:8 (parents are entrusted with the care of children), and Matthew 2 (government should not be allowed to force parents to harm their children).”