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Decision No. 16,163

Appeal of C.S., on behalf of her daughter C.S., from action of the Board of Education of the Westhampton Beach Union Free School District regarding immunization.

Decision No. 16,163

(October 8, 2010)

Kevin A. Seaman, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Westhampton Beach Union Free School District (“respondent”) that her daughter, C.S., is not entitled to an exemption from the immunization requirement of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On September 12, 2005, when C.S. was entering kindergarten, her father, R.S., submitted a letter to the school nurse at Westhampton Beach Elementary School advising that he was “exercising my legal option to exempt [C.S.] from vaccinations based upon my personal and religious beliefs.”  According to petitioner, she and R.S. were experiencing marital difficulties, after which, on August 29, 2006, R.S. again wrote to the school nurse, stating, “After much consideration, the [letter] of September 12, 2005 is withdrawn and revoked and there is no objection to having [C.S.] receiving her immunizations pursuant to the New York State Department of Health regulations.  My wife and I are Roman Catholics and have been informed there is no objection, based upon our religious beliefs.”  Notwithstanding the second letter, C.S. apparently continued to attend elementary school without being immunized.

At the end of the 2008-2009 school year, the elementary principal (who apparently is also petitioner’s employment supervisor) requested that petitioner sign and submit a “Request for Religious Exemption to Immunization Form” (“Form”) from the New York State Education Department (“NYSED”) website, which she did on June 15, 2009.  Petitioner stated that, “The Catholic Church states that parents do all in their power to provide for the physical upbringing of their children.  It is my sincere and genuine belief that the practice of vaccination is contrary to my religeous [sic] principals [sic].”  The form indicates that the principal approved the request on the same day.

At the beginning of the 2009-2010 school year, the principal requested that petitioner submit a religious statement with supporting documents.  According to petitioner, she learned that the principal’s spring and fall requests had been precipitated by pressure from R.S., who had been requesting that school officials “rescind” the previously granted waiver.  Petitioner submitted a brief letter stating, “As a Roman Catholic I am morally opposed to abortions.  Many of these vaccines are derived from aborted fetal tissues which goes against my religious beliefs.”  She attached to the letter a news article about the U.S. Coast Guard permitting an officer to forego vaccination because it was derived from fetal tissue.  She also attached pharmaceutical information about the measles, mumps and rubella live vaccine, and the varicella live vaccine.

On October 27, 2009, the superintendent asked petitioner to meet with him, after which he requested that she submit a religious statement within three days.  In a letter dated October 30, 2010, petitioner explained the derivation of two human diploid cell lines which were originally prepared from tissues of aborted fetuses and used for the preparation of vaccines.  She stated that she believes that “life begins at conception and the taking of life is immoral.  I believe that using these vaccines is in cooperation in evil which goes against my genuine and sincere religious beliefs . . . In addition, the use of the Hepatitis B vaccine on my child goes completely against her moral upbringing as she would not need protection against a disease which is acquired through intravenous drug use and or having multiple sexual partners.”

In November 2009, the superintendent informed petitioner that he would be willing to exempt C.S. from all vaccines derived from diploid cells taken from an aborted fetus.  Petitioner declined the offer.  Later that month, the superintendent offered to interview petitioner about her religious beliefs.  In response, on December 4, 2009, petitioner submitted an additional four-page statement regarding her religious views in which she stated, among other things, that although her earlier communications had referenced secular aspects of vaccination and health, she did not want these events “to be misconstrued that I’m refraining from vaccination based on medical contraindications.  Because I do not view the causations of natural phenomena apart from the spiritual world.”

By letter dated December 22, 2009, the superintendent determined that petitioner’s bases for seeking a waiver from immunization were not premised on sincerely held religious beliefs.  He reiterated his offer to exempt C.S. from the varicella (chicken pox) vaccine, because on the advice of the district’s chief medical officer (director of school health services), that was the only immunization containing aborted fetal tissues.  Petitioner declined and appealed to respondent.  By letter dated February 10, 2010, the district’s counsel informed petitioner’s advocate that respondent had upheld the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 2, 2010.

Petitioner asserts that respondent’s determination is arbitrary and capricious, and contends that she has genuine and sincere religious beliefs that are incompatible with medical immunizations and entitle her daughter to a waiver from immunization.

Respondent asserts that petitioner fails to meet her burden of establishing that respondent’s determination was arbitrary and fails to state a claim upon which relief may be granted.

I must first address a procedural issue.  By letter dated April 7, 2010, R.S., the student’s father, requested permission to intervene and be joined as party in this proceeding.  On April 12, 2010, he submitted a formal request for joinder, which petitioner opposed on April 22, 2010.  On May 4, 2010, R.S. submitted a reply affidavit and exhibits.  Petitioner submitted a reply letter on May 12, 2010.

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

The record reveals that according to an Order granted on September 15, 2008 in Supreme Court of the State of New York, Suffolk County (Blydenburgh, J.), petitioner was granted temporary custody, pendentelite[1], of C.S.  Further, by Order dated October 17, 2008, Judge Blydenburgh struck R.S.’s proposed modification of the custody arrangement as part of R.S.’s Order to Show Cause.  R.S. has produced no evidence demonstrating that petitioner does not have exclusive care and custody of C.S.

The Court of Appeals recently recognized that, “It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child’s upbringing [citations omitted]” (Fuentes v. Bd. of Educ. of City of New York, et al., 12 NY3d 309, 313).  The Court held further that, “Unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child’s education, a noncustodial parent has no right to ‘control’ such decisions.  This authority properly belongs to the custodial parent” (Fuentes v. Bd. of Educ. of City of New York, et al., 12 NY3d at 314).[2]  While the record reveals that the divorce decree in this case is not final, the custody arrangement in the record demonstrates that petitioner has exclusive custody and R.S. has provided no evidence to the contrary.  Accordingly, I find that he lacks standing and joinder is denied.  Therefore, I have not considered the two submissions of R.S. or those submitted by petitioner in response thereto.

Turning to the merits, 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).  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 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 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).

I find that petitioner has failed to establish that respondent’s determination of December 22, 2009 was arbitrary or capricious.  Petitioner asserts that when the school principal asked her to complete the NYSED form in June 2009, she presumed it was merely to reaffirm that she was still opposed to immunization, for the purpose of the district’s files, and, therefore, she did not include an extensive statement of religious beliefs.  When asked by the principal to supply a religious statement with supporting documents in the fall of 2009, petitioner told him about her older children’s asthma and allergies as factors that had prompted her to research both the medical and moral aspects of vaccines.  Thereafter, as noted above, she submitted a letter stating her moral opposition to abortions, from which she indicated vaccines are derived.  After a meeting with the superintendent on October 27, 2009, petitioner submitted a letter explaining how vaccines use diploid human cell lines and that “using these vaccines is in cooperation in evil which goes against my genuine and sincere religious beliefs.”  She subsequently submitted a more expansive explanation of her religious views on December 4, 2009.  Petitioner stated, among other things:

Poisons are poisonous to religious and secular people.  Similarly with respect to the law of chemistry, biology and physics: they are subsets of God’s universal laws, and we are all governed by them, regardless of our faith.  I do not establish a demarcation line between nature’s laws and the spiritual laws of God and faith.  That is why I can discuss medical contraindications with my doctor and you, and live in accord with my spiritual and moral beliefs quite comfortably.  Indeed, most of the greatest scientists in history were religious, and no one would challenge either their scientific bona fides or their faith in God. . . .

My personal relationship and faith in God has developed over the years from childhood to the present.  It was not merely going to Church every Sunday and celebrating the holidays that made an impression on me.  It was how my parents lived their everyday life, how they met life’s challenges with grace.

. . . I explained that based upon my faith, I personally stand opposed to taking the life of the unborn.  Vaccines contain cells derived from diploid cells taken from human aborted fetuses.  Because I believe that abortion is murder in the eyes of God, it follows that injecting genetic material of aborted fetuses into my child is a mortal sin.  This discovery was the most pivotal element in my decision to refrain from vaccination.

I believe in God, and that God has created us in his image.  In being created in God’s image, we are given his perfect immune system.  We are bestowed with his gift, the immune system.  I believe it is sacrilegious and a violation of my sacred religious beliefs to violate what God had given us by showing a lack of faith in God, Immunizations are a lack of faith in God and his way, the immune system.

I believe that God, as Divine Spirit, has created all things, including our immune system, and that we cannot separate our bodies from our spirit.  We are one whole breathing unity of being; a unity of body and spirit, and the integrity and wholeness of our body-spirit must be maintained because our bodies are the temples of our being, placed here on earth to serve a purpose only God fully knows.

I believe that the Holy Spirit lives in me . . . I have been taught from childhood to believe in the Holy Spirit because it will guide you in times of turmoil . . . human intervention with treatment - once sickness occurs - is permissible, because the symptoms of illness are divine messages to us that we must stop what we’re doing and focus on our illness, and doing things to remeliorate [sic] pain and comfort the ill is not doubting God . . . I also make a distinction between chemicals and biologically decaying cells . . . The bible tells us not to tamper with the blood.

. . . the most egregious sin of all is to utilize a medical procedure that profits from the abortion upon healthy human fetuses.  That, I learned, was irrefutable, and concluded that matter for me.

Although petitioner’s submissions include statements that are religious in nature, her statements about God, the perfection of the immune system and defiling the blood do not, in and of themselves, establish a sincerely held religious objection to immunization (seeAppeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875; Appeal of R.P. and R.P., 47 id. 124, Decision No. 15,648).  There is no doubt on this record that petitioner sincerely objects to immunizations, but the crux of the issue is whether the reason for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (seeCaviezel v. Great Neck Public Schools, et al., 701 F Supp 2d 414 [EDNY 2010]).

The evidence in the record reveals that the “pivotal” factor underlying petitioner’s opposition to immunization was actually the injection of “genetic material of aborted fetuses into my child . . . utiliz[ation of] a medical procedure that profits from the abortion upon healthy human fetuses.”  While petitioner’s opposition to the use of fetal tissue may be based on her religious beliefs, she seeks an exemption from all vaccines, irrespective of whether they derive from fetal material.  This position undercuts her argument that her opposition to immunization is actually religious in nature.  Moreover, petitioner declined respondent’s offer to exempt her child from the chicken pox immunization, which its director of school health services identified as the only vaccination involving cells from aborted fetal tissue.

Under the totality of the circumstances, I find that petitioner has failed to demonstrate that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal, therefore, must be dismissed.



[1]“Pendente lite” is a Latin phrase meaning: Pending the lawsuit; during the actual progress of a suit; during litigation (Black’s Law Dictionary, Sixth Edition).

[2]SeealsoFuentes v. Bd. of Educ. of City of New York, et al., 569 F3d 46, conforming to answer to certified question provided in Fuentes v. Bd. of Educ. of City of New York, et al., 12 NY3d 309.