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Decision No. 15,861

Appeal of B.R. and M.R., on behalf of their daughter A.M.R., from action of the Board of Education of the Byron-Bergen Central School District regarding immunization.

Decision No. 15,861

(January 20, 2009)

Law Offices of DiFilippo and Flaherty, attorneys for petitioners, Anthony DiFilippo, III, Esq., of counsel

David W. Lippitt, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Byron-Bergen Central School District (“respondent”) that their daughter, A.M.R., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, §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 22, 2008, petitioners 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 the form, petitioners requested an immunization exemption for A.M.R. based on alleged sincere religious beliefs.  On August 28, 2008, the elementary school principal (“principal”) and director of learning, teaching and technology (“director”) met with petitioners to discuss their request.  According to petitioners, the principal requested that they provide citations to medical resources and a letter from their pastor attesting to the sincerity of their religious convictions.

On September 10, 2008, petitioners submitted to the principal two medical books with highlighted pages indicating that some vaccinations contain animal byproducts and human fetal tissue.  Although the pastor was unable to submit the requested letter, the parties agree that the pastor spoke directly to the superintendent.

By letter dated September 15, 2008, the principal denied petitioners’ request, stating that “the objections presented appear medical and/or philosophical in nature rather than strictly religious.”  The letter also stated that the two books provided did not support a religious exemption.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 21, 2008.

Petitioners contend that they are entitled to a religious exemption for A.M.R. because their objections to immunization are based on sincerely held religious beliefs.  As support for their position, they reference several Biblical sections and explain their religious views.  They request that A.M.R. be admitted to the district’s schools.

Respondent maintains that the appeal must be dismissed because petitioners’ objections to immunization are not based on sincerely held religious beliefs.  Respondent also contends that the appeal is moot.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  By letter dated November 25, 2008, respondent notified my Office of Counsel that it had admitted A.M.R. to the district’s schools.  Accordingly, the relief sought has been granted and the appeal must be dismissed as moot.

Petitioners dispute that their appeal has become moot.  They contend that respondent has admitted A.M.R. merely because she currently meets the medical requirements, and as soon as she does not meet those requirements, they will be forced to re-submit a request for religious exemption.

Under PHL §2164, no further immunizations are required until A.M.R. is in the sixth grade and A.M.R. is currently in kindergarten.  Moreover, it is not presently known whether respondent would seek to exclude A.M.R. at some later date.  Thus, petitioners are in essence requesting an advisory opinion.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544).

In light of this disposition, I need not address the parties’ remaining contentions.