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Decision No. 16,175

Appeal of A.C., on behalf of her son O.F., from action of the Board of Education of the East Hampton Union Free School District regarding immunization.

Decision No. 16,175

(December 9, 2010)

Law Office of Ronald L. Kuby, attorneys for petitioner, Ronald L. Kuby, Esq., of counsel

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

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Hampton Union Free School District (“respondent”) that her son, O.F., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On or about April 14, 2010, petitioner submitted a “Request for Religious Exemption to Immunization Form” (“form”) for O.F., who was registering as a ninth grader in respondent’s high school for the 2010-2011 school year.  The record indicates that O.F. and his older brother previously attended school in the Montauk Union Free School District and, according to petitioner, both received exemptions from immunization based on religious beliefs.  Petitioner further asserts that respondent previously granted a religious exemption from immunization to O.F.’s older brother, who graduated from respondent’s high school in 2007.

On the form, petitioner stated that her religious beliefs “precluded” her from having her children “injected with small amounts of various diseases.”  Petitioner explained:

We believe that God’s plan for individuals is complete and perfect.  He has given his children an immune system so complicated that modern science can only begin to understand it.  To meddle with this divine system and plan can only invite the systems [sic] failure and His wrath.  To nurse a person through the stages of illness while their immune system naturally grows and evolves is in our belief what He intends in His immutable plan.  This He has revealed to our hearts and minds.

On or about June 1, 2010, the district’s school attorney responded with a letter informing petitioner that it was “necessary to clarify and verify” her request for a religious exemption.  The attorney requested that petitioner contact him to arrange a mutually convenient time to discuss the basis for her request.  In a June 14, 2010 letter, the attorney indicated that he had not yet received a response to his June 1, 2010 letter and again requested that petitioner contact him to schedule a meeting.  The attorney further stated that “[f]ailure to have this meeting in a timely manner could result in the delay of [O.F.’s] attendance” at school.

The record indicates that, on or about July 22, 2010, petitioner met with respondent’s attorney and assistant superintendent.  According to respondent, petitioner was informed at the conclusion of the meeting that she could submit additional information regarding her request; however, no additional information was provided.

Thereafter, by letter dated July 30, 2010, the high school principal informed petitioner that her request was denied.  Enclosed with the letter was a copy of the form, on which the principal explained the reasons for the denial:

In an interview that was conducted ... to gather more information, [petitioner] explained her objections to immunizations.  She believes that immunizations introduce disease and “evil” into the body; further, she believes that “less is more” and persons “should not be a consumer” and “partake in the destruction of the planet.”  In addition, she explained that her beliefs were based on the teachings of Christ as a part of her Catholic religion.

The school believes that the parent [sic] objections are social and philosophical and not religious in nature.  She did not offer specific religiously-based prohibitions except to say that her objections were based [on] teachings of Christ, through her religion of Catholicism, that prohibit introducing “evil” into the body.

This appeal ensued.  Petitioner’s request for interim relief was denied on September 7, 2010.

Petitioner maintains, interalia, that she has a sincere religious belief against immunizing O.F.  Petitioner asserts that her April 2010 statement “should have been sufficient to warrant granting the religious exemption” and that respondent’s denial of her exemption request was arbitrary and capricious.  Petitioner also alleges that respondent’s attorney took an “adversarial position” and “interrogated” her at the July meeting, and that respondent “violated proper procedure for handling” her religious exemption request.

Respondent generally denies petitioner’s allegations and contends that its determination was not arbitrary or capricious.  Respondent asserts that petitioner’s objection to immunization is not based on genuinely and sincerely held religious beliefs, but rather is based on “social and philosophical” beliefs against immunization.  Respondent further maintains that it acted properly in denying petitioner’s request and that petitioner failed to meet her burden of proof.

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 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of S.B., 48 id. 332, Decision No. 15,875; Appeal of L.S., 48 id. 227, Decision No. 15,845).  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 or person in charge of a school 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of S.B., 48 id. 332, Decision No. 15,875; Appeal of L.S., 48 id. 227, Decision No. 15,845).

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).

Petitioner contends that respondent’s process for handling her exemption request “violated” guidance from the State Education Department (“Department”) interpreting the requirements of 10 NYCRR §66-1.3(d).  The Department’s guidance states that “the building principal ... holds responsibility for reviewing each request form and for communicating in writing with the parent/guardian regarding the request’s approval or denial” and the principal “cannot assign these duties to the designee.”  While petitioner points out that the principal neither authored the June letters nor attended the July meeting, the record also indicates that, consistent with the Department’s guidance, the principal reviewed petitioner’s request, including the information obtained at the July meeting, made the final decision denying petitioner’s exemption request and sent the written notice explaining the reasons for his denial thereof.  Therefore, I cannot conclude that respondent violated 10 NYCRR §66-1.3(d) or acted inconsistently with the Department’s guidance by having the preliminary investigation and communication with petitioner conducted by someone other than the principal, in this case the school district attorney.  Though not unlawful, I urge respondent to reconsider whether having the school district attorney carry out this role is appropriate, given that it sets up an adversarial posture with parents and may result in unnecessary disputes.

I also find no merit to petitioner’s claim that respondent improperly requested a meeting.  While nothing in the applicable law or regulations requires parents to attend such a meeting, there is also nothing that prohibits school officials from requesting a meeting with parents.  Nevertheless, I note that the attorney’s June 14, 2010 letter specifically states that “failure to have this meeting in a timely manner could result in the delay of [O.F.’s] attendance in [respondent’s] schools in September.”  Although I disagree with petitioner’s characterization of this letter as “threatening,” such statement does suggest that a meeting was required in order for respondent to make a determination regarding petitioner’s request, which is not the case.  I also note that, while the June letters indicate that, after reviewing petitioner’s statement, questions remained about the existence of a sincerely held religious belief, the letters did not request supporting documents from petitioner, as required by Department of Health regulations (see 10 NYCRR §66-1.3[d]).  Rather, the letters requested only a meeting.  As a result, respondent is urged to review its communications to ensure compliance with applicable laws, regulations and guidance in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions.

Petitioner argues that respondent acted arbitrarily and capriciously by denying her request “despite her express invocation of God and God’s plan.”  Petitioner contends that respondent’s determination was based on statements that were “extracted from their context” and maintains that the fact that her religious objection is “also supported by her social and philosophical views is not a ground to question its religious nature....”

To the contrary, respondent points out that, while petitioner makes general statements that her opposition to immunization is based upon “the teachings of Christ,” she has not provided any specific references to or explanations of how such teachings inform her religious beliefs against immunization.  Rather, petitioner’s request contains only general statements that “God’s plan for individuals is complete and perfect” and that to “meddle with this divine system and plan can only invite the systems [sic] failure and His wrath.”  Nor do petitioner’s statements at the July meeting and in her memorandum of law provide any support for her request.  For example, petitioner explains that her belief system relates to the “ultimate concern” of individuals and that she believes in a God “who is an omnipotent, omniscient Creator, who makes and enforces rules of behavior, who takes a personal interest in each of his creations, and who rewards or punishes them accordingly.”  Petitioner further states that her belief system “encompasses a view of health that embraces a perception of God’s perfection in the individual, and a concomitant belief that science should not interfere with God-created perfection.”

I also find petitioner’s reliance on Berg, et al. v. Glen Cove City School Dist., 853 F Supp 651 (EDNY 1994) (“Berg”), to be misplaced.  In Berg, the parents challenged the school district’s denial of their request for a religious exemption.  The United States District Court, Eastern District of New York, granted the parents’ request for a preliminary injunction based on its finding that they had established a likelihood of success on the merits of their claim that their objection to immunization was based on genuinely and sincerely held religious beliefs.  While petitioner points out that the parents in Berg opposed immunization based on their “own, individual view of Judaism,” the court based its decision on additional evidence contained in the record, including (1) the parents’ explanation, both in their written statement and testimony before the court, of their own interpretations of certain Hebrew scripture, and (2) medical and dental records that “substantiate[d] [the parents’] claim that for at least the last six years they have practiced those beliefs they contend are opposed to immunization in contexts other than immunization, for instance, in the receipt of prenatal, pediatric and dental care.”  As described above, petitioner has produced no such explanations or evidence in the instant appeal.

After reviewing the record before me, I find that petitioner’s statements are insufficient to articulate the religious basis or origin of her beliefs (seeAppeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875).  Although petitioner’s submissions include statements that are religious in nature, her statements about God and the perfection of God’s plan 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).  I also note that the form petitioner submitted to respondent requesting a religious exemption requires that she address why she is requesting the exemption, describe the religious principles that guide the objection to immunization, and explain whether she is opposed to all immunizations, and if not, the religious basis that prohibits particular immunizations.  However, as described above, petitioner has provided no such explanation or description of her religious beliefs (seeAppeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792).  Accordingly, based on the record before me, I find that respondent’s determination denying petitioner’s request for an exemption was rational, reasonable and consistent with law.

Finally, petitioner appears to argue that respondent erred in denying her exemption request because it granted a religious exemption for her older son “based on the identical statement submitted” for O.F.  Petitioner also notes that O.F. and his brother were previously granted religious exemptions from another school district.  However, this does not prevent respondent from conducting a separate inquiry upon O.F.’s initial enrollment in its high school; indeed, district officials are obligated to make their own determination of whether a student qualifies for a religious exemption (seeAppeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875).  Moreover, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of Quigley, 41 id. 399, Decision No. 14,724).