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Decision No. 16,152

Appeal of K.R. and K.H., on behalf of their daughter M.R.R., from action of the Board of Education of the East Hampton Union Free School District regarding immunization.

Decision No. 16,152

(September 15, 2010)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the East Hampton Union Free School District (“respondent”) that their daughter, M.R.R., is not entitled to an exemption from the immunization requirement of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

By letter to respondent’s high school dated June 12, 2009, M.R.R.’s mother, K.H., requested an exemption from immunization for M.R.R., who was registering as a ninth grader for the 2009-2010 school year.  M.R.R. had previously attended school in the Springs Union Free School District, and, according to petitioners, had received an exemption from immunization based on religious beliefs.[1]  In her letter, K.H. stated that she and her ex-partner had refrained from immunizing their children, “as it is in direct conflict with our religious beliefs ... We hold that the act of immunization is an affirmation of disease and death over life and therefore God.  To subject our children to this would be a violation of our trust in the work of God and this blessed earth where we live to act this will [sic].”

The district’s school attorney responded with a letter requesting that K.H. contact him to arrange a mutually convenient time to discuss the basis for her request.  On July 7, 2009, the district’s assistant superintendent and its attorney met with K.R., M.R.R.’s father, without K.H.

Numerous rounds of written correspondence followed over several weeks between K.H. and the attorney in which she expressed some of her beliefs and stated her desire to respond to written questions rather than meet in person.  On August 19, 2009, K.H. finally met with the attorney and assistant superintendent.  Although K.H. had requested the opportunity to be represented by counsel and have the interview recorded, she appeared without counsel and did not request that the interview be taped.

On August 24, 2009, petitioners’ request for an exemption from immunization was denied because “the reasons offered did not meet the exemption from immunization as provided by law.”  On September 2, 2009, M.R.R. received an initial series of inoculations under protest by K.R.  This appeal ensued.  Petitioners’ request for interim relief was granted on September 28, 2009.

Petitioners contend that they are entitled to a religious exemption for M.R.R. because their objections to immunization are based on sincerely held religious beliefs.

Respondent contends that the appeal must be dismissed because neither petitioner presented a bona fide religious basis against immunizations.  Respondent maintains that it acted reasonably in fulfilling its obligation under the law.

I must first address two procedural issues.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  The record reveals that respondent served its answer on October 6, 2009, 19 days after the petition was served on September 17, 2009.  Apparently, the answer served on petitioners was missing a page and respondent re-served the answer, including the previously missing page, on October 8, 2009, the 21st day.  Under these circumstances, and in the absence of any prejudice, I have considered respondent’s answer.

Respondent questions K.H.’s participation in this appeal because petitioners are divorced and only K.R. verified the petition.  Section 275.5 of the Commissioner's regulations requires that the petition be verified by the oath of at least one of the petitioners.  The petition is properly verified by K.R. and both petitioners assert in the reply that K.H. is participating in the appeal.  Accordingly, I decline to dismiss the petition on this basis.

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 petitioners qualify for a religious exemption requires the careful consideration of two factors:  whether their 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).  Parents/guardians who seek a religious exemption must submit a written and signed statement to the school district stating that the parents/guardians object 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 petitioners’ statements and may consider petitioners’ 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

K.R. asserts that he has a medical condition that rendered him unable to express effectively his religious beliefs and way of life at the meeting on July 7, 2009.  He also objects that this meeting was not taped.  He states that he has been a massage therapist for 19 years, that his training “increased his faith in God and left [him] in ‘Awe of the Designer’” and that “God is the healer in every session;” that he was born Catholic but has not practiced since his early years, and has “a personal relationship with God actively praying and meditating and communicating with God on a daily basis ... all [his] life and on a daily basis since 1985;” and that he had been involved for 24 years, and worshipping God with, a spiritual community called the Institute of Core Energetics (Core meaning God).  He also provides a letter from a pastor whose congregation K.R. does not belong to, but who states that he knows K.R. “adheres closely to the tenets of [K.R.’s] spiritual program and has strived with integrity to discern and follow the will of God as he understands God.”

In the series of letters K.H. sent to the school’s attorney prior to their August 19, 2009 meeting, K.H. articulated aspects of her religious beliefs.  K.H. stated that she was raised Catholic, but has also embraced wisdom and guidance from Amhida Buddhism and Zen.  She stated, among other things:

I believe that the laws of physics, chemistry and biology are subsets of, and must obey the larger framework that is God’s universal laws;

As a mother, I have an obligation to honor that Buddha in my children, I also have a responsibility to guide myself and my children out of the coils of sense and mistake and break through. Why would I defile a radiant being by injecting dead/alive toxins into it? ... I, in turn have a responsibility, one that I take seriously and that is to make choice [sic] for my children that will preserve and nurture their spirit as well as their bodies in any and all ways I see fit, to honor their “Buddha spirit.”

Buddhism teaches, “Do no harm.” Vaccine warning labels clearly state their harmful, even fatal, side effects.  Buddhism does not oppose treatment of an existing illness by use of non-animal derived medicines, since that is an act of mercy ....  Buddhism does forbid the use of polluted, corrupted or impure ingredients whose origin comes from another being or, if not from another being literally, another’s suffering.  All licensed vaccines are tested for safety on innocent sentient animals, followed by phase II trials on human children-sometimes with lethal results.  If the beings whose tissue was used in the production of the vaccine were not dead, the manufacture violates the second, do not steal, as the being from which tissue was taken never gave consent.

... other drugs are not in the same category as vaccinations ... Vaccinations are injected directly into the blood stream, circumventing the body’s natural defenses. “Blood is life” (Deuteronomy 12:23) and “because the life of every creature is its blood   ...” (Leviticus 17:14) .... By vaccinating my children I am creating trauma and violating a temple of God I will not defile that Spirit by acting contrary to God’s Will, clearly set forth in the New Testament ....

Antibiotics, pain medications, and other drugs are chemicals and do not contain biological decaying matter, or aborted fetal tissue, and are not derived from animal cells.  Vaccinations are given to healthy people while they are still in alignment with God, and cause the blood, the body, and the Divine Spirit to become corrupt.

I live my faith on a daily basis ...

K.H. also explained that each of her daughters had received a tetanus shot, but only because each had been injured and the hospital required the shot prior to their release.

According to respondent, K.R. never mentioned Core Energetics at the July 7, 2009 meeting as a basis for his religious beliefs, but first referred to it in the petition, and its review of Core Energetics’ website reveals it to be a registered trademark established by a doctor as a means of therapy.  Respondent also maintains that K.R. was unable to enunciate any specific religious basis for his objection to immunization, stated that one must have faith that God would take care of him, and that he was aware of medical information with regard to the possible side effects of immunization.

Respondent also asserts that at the August 19, 2009 meeting, K.H. stated that she objected to dead organisms and fetal matter being injected into the blood in part because she objected to abortion; she distinguished between taking medicine orally, which she considered natural, versus unnaturally through injection; and she distinguished injections of chemicals as natural versus unnatural injections of immunizations.  Respondent states that K.H. also objected to the use of immunizations because they were tested on animals which she felt to be morally and ethically improper, and that she could not divorce her moral and ethical concerns from her religious ones.

On this record, I find that petitioners have failed to establish that respondent’s determination that the bases proffered for exemption “were predominantly scientific, philosophical and sociological and ethical in nature” was arbitrary or capricious.

It appears from the record that, at his interview with the school attorney, K.R. made general statements about God and his religious beliefs, but did not articulate a specific religious objection to immunization.  The letter he submitted from a pastor attests to the sincerity of K.R.’s religious beliefs generally, but does not support a finding that K.R.’s opposition to immunization is religiously based.  Respondent also indicates that K.R. stated at the interview that he is a massage therapist and was aware of the possible side effects of vaccinations.[2]

K.H., in explaining her reason for objecting to immunization, began by stating that “Buddhism teaches ‘Do no harm’” but then observed that vaccine labels state their harmful side effects and asserted that vaccines are tested on animals or even children.  Her distinction between her willingness to take antibiotics and other medications and her opposition to immunizations is clearly based upon the latter’s derivation from animal cells, which in turn is linked to her objection to animal testing.  While 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 that conflict with 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), it does have a bearing on an assessment of the sincerity of the alleged religious beliefs relating to immunizations (seeCaviezel and Caviezel v. Great Neck Public School, et al., ___ F Supp 2d ___, 2010, W.L. 126996 [EDNY 2010]).

There is no doubt on this record that petitioners sincerely object to immunizations, but the crux of the issue is whether the reason for petitioners’ objections are religious or predominantly philosophical, personal, medical or ethical in nature (seeCaviezel and Caviezel v. Great Neck Public School, et al., ___ F Supp 2d ___, 2010, W.L. 126996 [EDNY 2010]).  Under the totality of the circumstances, I find that petitioners have failed to demonstrate that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  Respondent engaged in extensive interviews with petitioners and carefully reviewed their written submissions and is in the best position to assess their credibility.  There is sufficient evidence in the record to support respondent’s determination that the key factors underlying petitioners’ opposition to immunization are actually ethical concerns over animal testing, concerns about health risks and personal or philosophical opposition to immunization.  The appeal, therefore, must be dismissed.



[1] The record contains a letter dated May 2, 2000 from petitioners to the “Springs School Board” requesting an exemption from immunization for M.R.R. upon her enrollment in kindergarten for fall 2000.  That letter contains language identical to that in K.H.’s June 12, 2009 letter.

[2] K.R. also argues in this appeal that he is a member of a spiritual community called the Institute of Core Energetics, whose beliefs are opposed to immunizations. K.R. did not, however, raise this argument with respondent prior to its denial. In any case, it appears from the record that the Institute of Core Energetics has a website that expresses medical and philosophical objections to immunizations, so it does not support petitioners’ claims.