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Decision No. 15,875

Appeal of S.B., on behalf of her children E.B., S.B., L.B. and H.B, from action of the Board of Education of the Clarkstown Central School District regarding immunization.

Decision No. 15,875

(February 19, 2009)

Lextow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her four children, E.B., S.B., L.B. and H.B., are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On July 7, 2007, petitioner registered S.B., L.B., and H.B. in the district’s schools.  By letter to the district dated July 16, 2007, petitioner asserted that she had the legal right to refuse to subject herself and her children to immunizations because she had sincere religious beliefs that prohibit her from immunizing her children.  Petitioner described her beliefs as follows:

I believe that there is a supreme universal force or spirit which can be found everywhere.  The supreme universal force or spirit could be called G-d, the guiding and supreme authority. The human body is a creation of this supreme authority and is therefore divine.

I believe the body’s immune system is also divine and must not be defiled by immunizations, which are a violation of supreme authority, and therefore unholy.

My religious beliefs are also based upon the understanding of what G-d requires of us, as provided in the Torah.

“For the life of flesh is in the blood and I have given it to you upon the altar to make an atonement for your souls, for it is the blood that maketh an atonement for the souls” (Leviticus 19:1).

“Follow G-d your Lord, remain in awe of Him, keep His commandments, obey and serve Him and you will then be able to cling to Him.  The physical body is the form which houses the lofty soul and therefore must also remain holy and pure and G-d would keep the body healthy without defilement, you must be holy, since I am G-d your Lord, and I am holy.” (Leviticus 19:1)

By letter dated July 18, 2007, petitioner forwarded to the district two letters, dated November 26, 2002 and November 5, 2003, from the coordinator of health services of the East Ramapo Central School District (“East Ramapo”), who had approved petitioner’s request for exemption from immunization based on a religious belief.

On September 10, 2007, petitioner registered her eldest child, E.B., who had previously attended a private school in New Jersey, and also requested an exemption for her.  All four children began the 2007-2008 school year in three different schools in the district.

By certified letter to petitioner dated December 4, 2007, the district’s coordinator of health services (“coordinator”) sent four copies of the State Education Department’s (“Department”) “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”) and directed petitioner to complete a form for each child.  On January 7, 2008, the post office returned the letter as unclaimed following three delivery attempts, after which the coordinator telephoned petitioner.  By letter dated January 9, 2008, the coordinator sent a second set of forms to petitioner and again directed her to complete and return the forms.

On January 25, 2008, petitioner submitted the completed forms to the district, and attached the previously submitted July 16, 2007 letter and East Ramapo approvals.  By letter dated February 12, 2008, the superintendent notified petitioner that she was unable to conclude that petitioner had established a sincerely held religious belief.  She requested that petitioner submit supporting documentation and provided examples of such documentation.  Although petitioner objected to the superintendent’s request, on March 16, 2008, she submitted a February 26, 2008 letter from a rabbi in New Jersey who stated that he had known petitioner for eight years and that her reluctance to immunize her children is truly her “sincerely held religious belief.”

According to both the superintendent and coordinator, they considered petitioner’s forms incomplete and found her unresponsive to various attempts to schedule a follow-up meeting.  A meeting was finally held on July 16, 2008, when petitioner and an advocate met with the superintendent, the coordinator, and the assistant superintendent for pupil services.  Petitioner reiterated that East Ramapo had granted previous exemptions, and questioned the duration of the district’s inquiry.  District representatives explained that there was a new coordinator, but more importantly, maintained that petitioner had not been cooperative or forthcoming.

By letter dated September 22, 2008, the superintendent denied petitioner’s exemption request.  She explained that since the four children were attending three different district schools, she was overseeing the matter rather than having the three principals act individually.  The superintendent found that petitioner failed to express in her own words why she was requesting the exemption, failed to describe the religious principles guiding her objection to immunization, failed to indicate with specificity whether she was opposed to all or just particular immunizations, and failed to submit any real explanation of her observances or beliefs contrary to immunization.  The superintendent informed petitioner that the children would be excluded from school as of October 10, 2008.

By letter dated October 6, 2008, petitioner requested that the children be allowed to remain in school because of the Jewish holy season and the critical health of her mother who had just been placed under the care of Hospice.  She also requested answers to eight questions regarding respondent’s participation in the denial and requested respondent’s review.

By letter dated October 9, 2008, the superintendent denied petitioner’s request to allow the children to remain in school.  The superintendent also informed petitioner that respondent had no role in the determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 23, 2008.

Petitioner requests an exemption from immunization for her four children.  She asserts that since another district previously granted an exemption, respondent must do so.  Petitioner claims she is entitled to be deposed by respondent and that she holds genuine and sincere religious beliefs.  She objects that the superintendent, rather than the individual principals, rendered the determination.

Respondent contends that petitioner’s objections to immunizations are not based on sincerely held religious beliefs.  Respondent also requests attorneys’ fees.

I will first address a procedural issue.  On December 30, 2008, petitioner submitted a letter relating to the merits of this appeal and failed to serve respondent as required in §276.5 of the Commissioner’s regulations.  Accordingly, I have not considered the letter.

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, §2169(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.

The determination of whether S.B. 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 K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of R.P. and R.P., 47 id. 124, Decision No. 15,648; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  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 determining whether beliefs are religious in nature and sincerely held, school officials must make a good faith effort to assess the credibility and sincerity of petitioner’s statements and may consider petitioner’s demeanor and forthrightness.  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 L.K., 45 Ed Dept Rep 10, Decision No. 15,243; Appeal of D.K., 44 id. 47, Decision No. 15,094; Appeal of C.R. and C.R., 44 id. 39, Decision No. 15,091).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner’s reliance on a previous exemption granted by East Ramapo in 2002 and 2003 is unavailing.  The single-sentence approval is outdated and, even if information were available to determine the basis for that approval, district officials are obligated to make their own determination of whether the children qualify for a religious exemption.  Moreover, since one child, E.B., had never been granted an exemption, a new inquiry was required.

I also find unavailing petitioner’s objection to the superintendent’s handling of the inquiry.  In light of the unusual circumstance involving four children and three different schools, the superintendent’s decision to personally consider all requests was a prudent use of resources.

After reviewing the record, I find that petitioner’s general statements -- that she believes in a supreme universal force that could be called G-d and the human body is divine -- are insufficient to articulate the religious basis or origin of her beliefs (seeAppeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Petitioner was given numerous opportunities to explain the basis of her beliefs but declined to do so.  Accordingly, I find that respondent’s determination was rational, reasonable and consistent with law.

Respondent’s request for attorneys’ fees must be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

In light of this disposition, I need not address petitioner’s remaining contentions.