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Decision No. 15,971

Appeal of C.S., on behalf of her daughter D.V.S., from action of the Board of Education of the Rondout Valley Central School District regarding immunization.

Decision No. 15,971

(August 20, 2009)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Michael K. Lambert and Julie M. Shaw, Esqs., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Rondout Valley Central School District (“respondent”) that her daughter, D.V.S. (known as DW), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

DW attends the Rondout Valley Middle School.  In September, 2008, the school nurse (“nurse”) conducted a review of student records to assure their compliance with the immunization requirements of PHL §2164.  In the course of that review, she telephoned petitioner, who informed her that she did not want DW to receive the pertussis vaccination because a cousin had developed a handicapping disability as a result of his receipt of that vaccination.  The nurse then reviewed DW’s health record which revealed that DW had received the other vaccinations required by PHL §2164.  The following day, the nurse received a note from a nurse practitioner at a pediatric practice stating that DW had not received the pertussis vaccine at petitioner’s request.  In a follow-up telephone call, the nurse practitioner told the nurse that petitioner refused to have DW vaccinated for pertussis, but he opined that there was no medical reason for DW not to receive the vaccination.  The nurse conveyed all this information to the middle school principal.

On September 8, 2008, petitioner submitted a “Request for Religious Exemption to Immunization Form” (“Form”) for DW.  On the Form, petitioner stated:

It is against my religious belief to inject the pertussis vaccine into my children, for if I do, I would be committing a sin against the Law of God. ... I sincerely believe that the adverse reactions of the pertussis vaccine may cause “brain damage” or even “death” and that in mind [sic] I can’t take any chances of harming my children by something that I am aware of.  God blessed me with my children therefore it is my duty to God to raise and protect them as I see fit.

I have been “Blessed by God” with 4 “beautiful” and “normal” children, that never have had the pertussis vaccine due to the fact that I strongly believe that it is “wrong” to take a chance on the “worst adverse reactions” possible. (Emphasis in original).

Petitioner attached to the Form several verses excerpted from the Living Bible concerning sin including Romans 14:23 and John 3:4-6, 8 and 9.

On October 8, 2008, the middle school principal denied petitioner’s request for exemption from immunization based on his determination that petitioner’s explanation exhibited a belief and fear that harm would come to DW if she were to be vaccinated, but it did not show a genuine and sincere religious basis for the objection to vaccination.

Upon receipt of the denial, petitioner called the principal and asked to meet with him and her pastor.  According to the principal, petitioner reiterated during that conversation that the pertussis vaccination was harmful and that God had enlightened her to this fact.  After the principal informed petitioner that he would gladly meet with her but that his decision would not change based upon her Form and the fact that DW had received other vaccinations, no meeting was held.  This appeal ensued.  Respondent permitted DW to remain in school pending the outcome of this appeal.

Petitioner maintains that she has a sincere religious belief against immunizing her children against whooping cough, for which the pertussis vaccine is designated.  She asserts that the denial of her exemption request was not considered fairly and that the Constitution prohibits discrimination based on religious beliefs.  She requests a determination granting her an exemption pursuant to PHL §2164.

Respondent contends that its determination was not arbitrary or capricious because petitioner’s objection to the pertussis vaccination is not based on genuinely and sincerely held religious beliefs but rather is based on a personal and medically-based belief that an adverse reaction to the vaccine may cause brain damage or death.  Respondent asserts that petitioner has failed to meet her burden of proof and that the Commissioner lacks jurisdiction over constitutional issues.

I must first address two procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I decline to address petitioner’s constitutional claims because an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of Seton Catholic Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481; Appeal of Johnson, 45 id. 446, Decision No. 15,377; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of Seton Catholic  Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481).

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.

The determination of whether petitioner qualifies for a religious exemption requires the careful consideration of two factors:  whether her 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 UFSD, 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, 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).

I find that the record 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 DW.  The fact that an individual’s children have been immunized in the past is not dispositive in determining whether such individual has genuine and sincere religious beliefs contrary toward immunizations (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Rather, I find that the record before me supports the determination of respondent’s principal that petitioner’s request for a religious exemption was based upon her fear of an adverse reaction to the pertussis vaccine rather than any religious beliefs.  Her statements that the pertussis vaccine may cause “brain damage or even death,” that she “can’t take any chances of harming” her children, and that it is “‘wrong’ to take a chance on the ‘worst adverse reactions’ possible,” evince personal and medically-based beliefs regarding the risks of administering the pertussis vaccination, rather than deeply held religious objections to immunizations.  I further find that petitioner’s submissions of biblical citations concerning sin are not sufficient to establish that she holds genuine and sincere religious beliefs against immunization.  Accordingly, I find that petitioner has failed to establish that respondent’s determination was arbitrary or capricious.