Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Deer Park Union Free School District regarding immunization.

Decision No. 16,968

(August 31, 2016)

Chesney & Nicholas, LLP, attorneys for petitioner, John M. Gherlone, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Joseph W. Carbonaro, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her daughter (the “student”) is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

On or about March 7, 2016, petitioner requested that respondent grant a religious exemption on behalf of the student from immunization pursuant to PHL §2164.  Petitioner submitted a Request for Religious Exemption to Immunization Form, in which she stated, among other things, as follows:

We hold religious beliefs which are personal and fundamental in our lives.  Our connection with God is intimate and our faith in him is sacred.  Only an individual can conceive and give praise of their own personal journey with God.  Our God is our lord and savior, our creator and protector, who guides us in body, mind and spiritual soul. 

The act of vaccinating violates our personal religious belief, the principles of our faith, and ability to follow our conscience when we seek spiritual guidance from our Lord and Savior.

In addition to her written statement, petitioner also submitted two letters of reference.  The first letter was from fellow parishioners at petitioner’s parish which describe petitioner’s “sincerity and enthusiastic participation within the Parish.”  The second letter was from the student’s social worker, which states that she met the family through the student’s Early Intervention provider and has known the student’s family for over four years and is familiar with the “issues in regards to [the student]’s diagnosis, health, progress and development, and general family concerns that dealt with raising a child with Down Syndrome.”  The social worker further added that petitioner and her husband:

disclosed to me their religious beliefs and how the act of vaccinating violates their religious principles.  They shared with me numerous personal stories related to their faith in God and how important their values are to them.

I understand that the sincerity of this family’s religious beliefs is being questioned.  Through what I have witnessed, I can attest that their religious convictions against vaccinations are indeed sincere and genuine.  This is an intact and caring couple who take pride in their values both religiously and morally and use this not only to guide their parenting, but as active members of their community as well. 

Petitioners also submitted a medical form signed by the student’s doctor noting that, “NYS Public Health Law 2164 Section 9 Genuine + sincere personal religious beliefs against vaccinations.”

By letter dated March 11, 2016, respondent’s John Quincy Adams Primary School Principal (“principal”) denied petitioner’s request for religious exemption from immunization.  The basis for the denial was as follows:

Your request demonstrates a philosophical objection to immunizations, and the statements and documents provided are not grounded in religious reasons, rather are based on personal beliefs.  A parent’s desire to protect their child does not constitute a religious belief that prohibits the immunization of their child.  

This appeal ensued.

Petitioner asserts, inter alia, that she has genuine and sincere religious beliefs that are contrary to immunization and that respondent’s denial of her exemption request was “hurried,” conclusory, and arbitrary and capricious.

Respondent asserts that petitioner failed to meet her burden of proving that her exemption request complied with law, statute, or regulations or that it entitles her child to attend school without the necessary vaccines.  It maintains that it carefully considered petitioner’s exemption request and denied it based upon its finding that petitioner’s opposition to immunization is based upon personal, non-religious beliefs.

I must first address the procedural issues.  By letter dated July 11, 2016, petitioner’s counsel objected to respondent’s memorandum of law as untimely and substantively improper.  Section 276.4 of the Commissioner’s regulations requires respondent to serve a memorandum of law on petitioner in accordance with §275.9 within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  In this case, respondent’s answer was served on May 9, 2016 and petitioner’s reply was served on June 6, 2016.[1]  Respondent’s memorandum of law, which was served on June 30, 2016, is therefore untimely.  The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]; Appeal of Vyas, 51 Ed Dept Rep, Decision No. 16,306).  However, there has been no such showing here.  Respondent’s counsel has not responded to petitioner’s objection or submitted any excuse for the delay.  Therefore, I have not considered respondent’s untimely memorandum of law.

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 petitioner’s purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (see Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 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 FSupp 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 FSupp2d 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 H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).  A parent or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent or guardian objects to his or her child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of his or her 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 H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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).

Upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely held religious beliefs.  To support her religious exemption request, petitioner alleges that her March 7, 2016 request was based “solely upon her closely held, and deep rooted, religious beliefs – not on a philosophical basis or a ‘desire to protect [her] child’ as erroneously referenced in the hastily issued denial letter from respondent.”  Additionally, petitioner asserts that her letter “speaks of an innate knowing, based upon her relationship with God, that the act of vaccinating is absolutely forbidden.  Such a knowing goes far beyond philosophy or a mere idea, it is a knowing that resides in the depths of her soul and is based upon her relationship with God.”

I find that petitioner’s general statements are insufficient to establish the religious basis or origin of her beliefs (see Appeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Prior Commissioner’s decisions have generally held that mere citations to statements that are religious in nature, general statements about God, the perfection of the immune system, and citations to Biblical verses and passages, without more, are not sufficient to establish genuine and sincere religious beliefs against immunization (see e.g., Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; Appeal of I.M. and G.M., 50 id., Decision No. 16,164; Appeal of C.S., 50 id., Decision No. 16,163).  Indeed, in her reply, petitioner confirms that all of the letters submitted with her March 7 request for religious exemption were submitted “to attest to Petitioner’s genuine and sincere nature – not to confirm or deny her personal religious beliefs.”  Accordingly, I find that respondent’s determination was rational, reasonable and consistent with the law.

Petitioner claims that respondent’s denial was arbitrary and capricious because it was dated only four days after petitioner submitted her request and erroneously alleges that petitioner’s request is based on her philosophical objection guided by a desire to protect her child.  However, as respondent’s answer in this appeal explains, petitioner submitted “scant documentation, which allowed prompt and thorough review.”  Moreover, respondent contends that its March 11, 2016 denial letter was sufficient in that it characterized the letters and documents petitioner submitted as “based on personal beliefs” as opposed to religious beliefs; it advised that a “desire to protect” the child is not a religious belief that prohibits immunization; and it proffered “clearly stated, specific reasons, and all that is required by law.”  In its verified answer, respondent also explains that petitioner’s request set forth “no connection between the practice of immunization and Petitioner’s religious beliefs, states no doctrine or principle as to which immunization would be contrary, and professes no reason whatsoever why immunization violates Petitioner’s personal religious beliefs.”

Although petitioner claims that respondent’s denial lacks specificity, support, and is therefore conclusory, I find that the March 11 letter adequately notified petitioner of the deficiencies of her submissions and petitioner has had sufficient opportunity to respond (see e.g., Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.S., 50 id., Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).  Accordingly, based on the record as a whole, I reject petitioner’s contention that the denial was too vague, or arbitrary or capricious (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).

Petitioner asserts that she submitted an identical religious statement to the Developmental Disabilities Institute (“DDI”) in or around June 2013, which was approved by DDI.  However, petitioner’s reliance on a previous exemption granted in 2013 is misplaced (see Appeal of O.M. and R.M, 52 Ed Dept Rep, Decision No. 16,414; Appeal of S.B. 48 id. 332, Decision No. 15,875).  The record contains a copy of DDI’s approval letter, which consists of two sentences and merely states that petitioner’s religious exemption request “has been approved.”  Even if information were available to determine the basis for that approval, district officials are obligated to make their own determination of whether the student qualifies for a religious exemption (Appeal of S.B., 48 Ed Dept Rep 332, Decision No. 15,875).

Accordingly, while the record reflects that petitioner may sincerely object to immunizations, the crux of the issue is whether the reasons for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16 [2d Cir. 2012], cert. denied, 133 S Ct 1997).  The record, as a whole, lacks evidence of sincerely held religious objections to immunizations.  Accordingly, I find that petitioner has failed to demonstrate that her opposition to immunization stems from sincerely held religious beliefs or 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.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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