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Decision No. 16,250

Appeal of B.R. and M.R., on behalf of E.R.R., from action of the Board of Education of the Byron-Bergen Central School District regarding immunization.

Decision No. 16,250

(June 13, 2011)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for petitioners, Patrick M. McNelis, Esq., of counsel

David W. Lippitt, Esq., attorney for respondent

KING, Jr., Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Byron-Bergen Central School District (“respondent”) that their son, E.R.R., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In mid-August 2010, petitioners met with the district’s superintendent regarding a request for a religious exemption from immunization for E.R.R.  On August 27, 2010, petitioners submitted a written request for such exemption for E.R.R. using the State Education Department’s (“Department”) “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”).  By letter dated September 8, 2010, the acting elementary school principal (“principal”) requested additional documentation from petitioners “so that we can properly ascertain the nature of this request.  This information may include a letter from your pastor/priest, religious leader or other documentation that clearly demonstrates that this is a religious request.”

Following an exchange of emails seeking clarification of the information sought, petitioners submitted a letter to the principal on September 10, 2010, elaborating their beliefs and providing biblical citations.  They also submitted a 2008 letter from their church pastor.  By letter dated September 15, 2010, the principal denied petitioners’ request, stating that “the objections presented appear medical and/or philosophical in nature rather than strictly religious.”  This appeal ensued.  Petitioners’ request for interim relief was denied on October 19, 2010.

Petitioners contend that they are entitled to a religious exemption for E.R.R. because their objections to immunization are based on sincerely held religious beliefs.  In support, they reference several Biblical citations and explain their religious views.  They also submit a more recent, albeit identical statement, from their pastor, dated September 30, 2010.  They assert that respondent’s denial is arbitrary and capricious, and request that their son be admitted to the district’s schools.

Respondent maintains that the appeal must be dismissed because petitioners’ objections to immunization are not based on sincerely held religious beliefs.  It asserts that petitioners rely on the same biblical references and pastor’s statement they submitted in 2008 when respondent denied their request for a religious exemption from immunization for their older daughter, and that petitioners’ objections to immunization continue to “appear medical and/or philosophical in nature rather than strictly religious.”[1]

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).

Respondent maintains that in the 2008 exemption request for their daughter, petitioners submitted two books, authored by medical doctors, with highlighted articles referencing ingredients in vaccinations that they found objectionable, specifically, animal and fetal tissue.  Accordingly, the elementary principal at that time determined that petitioners’ objections to immunizations were based on medical and/or philosophical reasons, which were not primarily religious in nature.  Although petitioners did not resubmit those documents in the instant appeal, respondent asserts that they did not disavow them, and admits that the current principal considered them in reaching his decision regarding E.R.R., even though he did not refer to them in his September 15, 2010 denial letter.

Petitioners contend that they submitted that medical documentation in 2008 in response to a specific request from the principal at that time for information demonstrating the ingredients in vaccinations.  They assert that the principal failed to inform them that they had a duty to disavow any past submissions, and that by considering such information, respondent has essentially unilaterally amended their request for an exemption for E.R.R.  They acknowledge in their petition in this appeal that their son’s medical issues at a young age were traumatic and caused them to re-evaluate their religious beliefs, but they aver that they are not alleging that immunizations will harm E.R.R. medically, but rather request an exemption based solely on their sincerely held religious beliefs.  They contend that the September 15, 2010 denial letter does not dispute the sincerity of their beliefs, but rather classifies their beliefs as medical or philosophical.

When presented with a request for an exemption from immunization, it is not unreasonable for school officials to review information regarding previous requests for other family members or siblings (seee.g.Appeal of L.S., 50 Ed Dept Rep ___, Decision No. 16,180; Appeal of A.C., 50 id. ___, Decision No. 16,175).  Indeed, while the fact that an individual’s child or children may 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., 701 F Supp 2d 414 [EDNY 2010]).

In light of the circumstances here, where petitioners met with the superintendent and several rounds of emails were exchanged prior to the principal’s denial on September 15, 2010, it would have been prudent for the principal to have asked petitioners to address directly his concerns or perceived conflict between petitioners’ current and past exemption request.  In addition, while petitioners do not specifically challenge the sufficiency of the denial letter, I note that the Department’s guidance to school districts accompanying the form requires that if a request for exemption is denied, “the notification letter must contain the specific reason(s) for the denial.”  Nevertheless, while petitioners did not have the opportunity to respond to this aspect of respondent’s concern prior to the denial, this issue was raised in the appeal and petitioners have now had sufficient opportunity to address it.  Respondent, however, is reminded of the obligation to provide parents with appropriate written communication articulating the specific reasons for the denial for religious exemptions in accordance with the Department’s guidance.

Similarly, it was not unreasonable for respondent to review petitioners’ pastor’s statement from 2008 and note that petitioners’ church “does not have a statement or religious view on immunization.”  However, respondent must remain mindful that 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).

Respondent concluded that the “various quotes from the Bible do not directly support your request for a religious exemption.”  On the form submitted on August 27, 2010, petitioners referred to several biblical citations from Corinthians, Leviticus and Acts.  They stated their belief that as Christians, life is a gift from God, their bodies are “creations to be revered as temples of God; . . . your body is a temple of the Holy Spirit, who is in you . . . . Therefore honor God with your body.”  They declared that they had declined further vaccinations of themselves and their children based on the principle of strengthening and searching for wholeness within their physical and spiritual selves and their relationship with God.  They also referred to:

a commonly known fact that many vaccinations are harvested and/or derived from animal tissue (blood) and human fetal tissue.  Clearly vaccinations are in direct violation of God’s will for us based on, at least, the three points below:

1. Vaccinations are in direct violation of the commandment, “Thou shall not commit murder”, in reference to vaccinations harvested from human fetal tissue.

2. The injection of chemicals and foreign proteins which have been harvested in animal or human tissue directly into the bloodstream is mixing the blood of animals with the blood of humans.  It is also pollution of blood.

3. We believe immunizations show no faith in God’s promises of protection for us, saying to God that we trust man more than His holy words of protection.  I Corinthians 2:5 states, “That your faith should not stand in the wisdom of men, but in the power of God.” We believe in God and that God has created us in his image.  In being created in His image, we are given His perfect immune system.  We believe it is sacreligious [sic] and a violation of our held religious beliefs to violate what He has given us.  Immunizations are a lack of faith in God and His creation of the immune system in us.  We believe in Jesus’ promises of protection, that He loves us and that He will care for us if we place our trust in Him.

Although petitioners’ submissions include statements that are religious in nature, their 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 C.S., 50 Ed Dept Rep ___, Decision No. 16,163; Appeal of S.B., 48 Ed id. 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 petitioners sincerely object to immunizations, but the crux of the issue is whether the reason for their 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]).

Petitioners’ opposition to immunization is based in part on the “the commonly known fact that many vaccinations are harvested and/or derived from animal tissue (blood) and human fetal tissue.”  However, they seek an exemption from all vaccines, irrespective of whether they derive from fetal or animal tissue, and fail to specify or provide any evidence to indicate which, if any, vaccines actually contain such tissue.  This undercuts their argument that their opposition to immunization is religious in nature (seeAppeal of Y.R. and C.R., 50 Ed Dept Rep ___, Decision No. 16,165; Appeal of C.S., 50 id. ___, Decision No. 16,163).

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.  The appeal, therefore, must be dismissed.



[1] Petitioners also appealed the 2008 denial.  By decision dated January 9, 2009, Commissioner Mills dismissed that appeal as moot without addressing the merits; respondent had admitted petitioners’ daughter to the district’s schools because she met the immunization requirements at that time (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861).