Decision No. 17,095
* Subsequent History: Matter of Board of Educ. of Carthage Cent. School Dist. v Commissioner of Educ. of State of N.Y.; Supreme Court, Albany County, Special Term (Mott, J.); Judgment dismissed petition to review; November 28, 2017. *
Appeal of K.M. and T.M., on behalf of their children K.M. and J.M., from action of the Board of Education of the Carthage Central School District regarding immunization.
Decision No. 17,095
(June 13, 2017)
Office of Inter-Municipal Legal Services, attorneys for respondent, Dominic D’Imperio, Esq., of counsel
ELIA, Commissioner.--Petitioners K.M. and T.M. (“petitioners”) appeal the determination of the Board of Education of the Carthage Central School District (“respondent”) that their children, K.M. and J.M. (“the students”), are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be sustained.
By letter dated August 8, 2016, petitioner T.M. requested a religious exemption on behalf of her children, K.M. and J.M., who were attending respondent’s public schools. In the letter, petitioner T.M. described her catholic faith and upbringing and explained how her familial relationships, Christian tradition and experiences played an important role in her religious beliefs. Petitioner T.M. elaborated on how her faith has guided her through many aspects of her life. Petitioner T.M. further explained that she “desperately wanted to be a mother” and “when [petitioners] found it difficult to conceive [they] leaned on the church and [their] religious beliefs.” Petitioner T.M. stated:
As I was preparing to be a mother, I had never given much thought to vaccinations, except coming to the conclusion that they were safe and effective. I still believe that today.... Every time I took my children to the doctor, I had them receive the shots that were due at the time.
Petitioner T.M. explained that her turning point occurred during her attendance at a women’s church group during Thanksgiving 2011 while discussing vaccinations and religious beliefs with a friend. Petitioner T.M. explained that, shortly thereafter, she began reading the Bible and “prayed to the Lord for guidance.” According to the record, the students have not received their remaining immunizations since November 2011.
In her August 8, 2016 letter, petitioner T.M. further stated:
Vaccination, at least the way people treat it, displaced God in matters of mortality and disease, and thus diminished faith. If one vaccinates, then one assumes God was negligent when he created us, and that it was left to mankind to improve upon us.... This is very contrary to my faith as it presents a broken trust in God.
She further stated, “I was raised that I should not worship any god but God.... Secular society seeks to place trust in vaccines over trust in God.... To believe that vaccination is going to save us from disease is to put vaccines in the place of God.” She also cited to various Biblical verses and texts and explained her interpretation of those Biblical verses and texts.
In addition, petitioner T.M. stated that she objects to vaccinations because they “contain what the industry calls biologicals - or what I call, the debris of once living animals.” She further stated that "[w]hen these biologicals from other living beings are injected into the body during routine vaccination, the blood, thus our soul, gets contaminated.” She also stated that “[a]s a mother, I need to do whatever is in my power to protect my children and keep them safe, this includes their soul....” In support of their request, petitioners provided a link to the Centers for Disease Control and Prevention (“CDC”) website which appears to provide lists of ingredients contained in vaccinations and substances used during the manufacturing process.
By letter dated August 18, 2016, respondent informed petitioner T.M. that “based on your initial submission, we are unable to make a final determination on your request for a religious exemption.” Respondent asked petitioner T.M. to provide additional supporting documentation and respond to 11 questions regarding her religious beliefs.
By letter dated August 26, 2016, petitioner T.M. submitted additional documentation and responses to respondent’s questions. Petitioner also asked respondent for clarification on certain questions presented in the August 18, 2016 letter. In addition, petitioner informed respondent that she had previously provided information regarding many of respondent’s specific questions and directed respondent to the exact page and paragraph in her original August 8, 2016 exemption request where “this question is addressed in proper context, and in full detail....”
By letter dated August 29, 2016, respondent denied petitioners’ request. This appeal ensued.
Petitioners’ request for interim relief was granted on October 7, 2016. Respondent appealed this decision and challenged the grant of interim relief through a proceeding under Civil Practice Law and Rules (“CPLR”) Article 78. The interim relief was overturned by Supreme Court, Albany County pending a determination on the merits of the instant appeal (Carthage Cent. Sch. Dist. v. Comm’r of Educ., Index No. 6005-16 [Albany County Supreme Court]).
Petitioners contend that their objections to immunizations are based on genuine and sincerely held religious beliefs and seek a determination that the students are entitled to a religious exemption from the immunization requirements under PHL §2164.
Respondent contends that petitioners’ objections to immunizations are not based on genuine and sincerely held religious beliefs and that petitioners have failed to meet their burden of proof. Respondent also contends that the appeal should be dismissed for lack of verification and as untimely. Respondent further maintains that its determination was rational, not arbitrary or capricious, and proper in all respects.
I must first address several procedural issues. An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810). Therefore, to the extent that petitioners attempt to raise constitutional issues in this appeal, I decline to consider such constitutional claims.
Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). Respondent asserts that the petition served upon it was not verified. However, the petition submitted to my Office of Counsel contains the required verification. A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the New York State Education Department for filing includes a proper verification (Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904). Accordingly, I decline to dismiss the petition for lack of proper verification.
In its memorandum of law, respondent argues for the first time that petitioners’ appeal is untimely. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Nevertheless, I note that respondent denied petitioners’ religious exemption request by letter dated August 29, 2016, and petitioners properly served the instant petition upon respondent on September 27, 2016. Therefore, respondent’s timeliness argument is also without merit.
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 petitioners qualify for a religious exemption requires the careful consideration of two factors: whether petitioners’ 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/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 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 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).
Respondent disputes that petitioners’ objection to vaccines is based on sincere and genuine religious beliefs. To support its position, respondent argues that petitioners have failed to show that their beliefs are religious in nature. Respondent argues that although petitioners “attempt to couch their objections regarding vaccinations in religious tones,” petitioners’ statements are contradictory and not credible. Respondent also argues that because petitioners previously agreed to a delayed vaccination schedule for one of their children during the 2014-2015 school year, it is “an implied assertion that closely grouped vaccinations present some type of health concern” and is “strong evidence of an undisclosed personal, philosophical, medical objection to vaccinations unrelated to a religious belief.” Respondent further contends that petitioners’ citations to Biblical verses and texts do not warrant a finding that their beliefs are religious in nature. Finally, respondent argues that in response to its questions and request for additional documentation, petitioner T.M. provided:
[l]imited and combative response[s] [and] did not answer many of the districts [sic] questions and concerns as to whether the petitioners truly asserted a sincere religious belief as the basis for an objection to one or more immunizations.
Although I 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 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), in the instant appeal, in addition to citing to Biblical texts and religious materials, petitioner T.M. further explains and specifies the precise nature and origin of her beliefs in her own words in her August 8, 2016 exemption request.
In addition, in response to respondent’s questions and request for additional documentation, petitioner T.M. further explained her beliefs as outlined in her original exemption request. Her beliefs appear to be based on her own interpretation of the Bible in accordance with her Christian upbringing, are religious in nature, well-articulated, consistent and straightforward.
I note that respondent generally attacks petitioner T.M.’s credibility, arguing that it found petitioner T.M. “lacking in credibility and sincerity” because, among other reasons, she agreed to a delayed vaccination schedule for J.M. with no intention of completing such vaccinations. Petitioner T.M. admits that petitioners “had no intention of following through” on this agreement, but argues that they were coerced into doing so “under duress and against our religious beliefs.” Even if petitioners had not admitted this, I would not substitute my judgment for that of local school officials on an issue of credibility (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,533). However, petitioners’ admitted insincerity does not necessarily impugn their credibility with respect to their religious beliefs, which are the crux of the instant appeal. Petitioners contend that they falsely agreed to the delayed vaccination schedule so that, vaccinations notwithstanding, J.M. could return to his elementary school classroom, taught by a teacher whose “personality and learning style” aligned with J.M.’s. Therefore, on this record, I do not find respondent’s negative credibility finding to be dispositive of an assessment of the genuineness and sincerity of petitioners’ religious beliefs.
I have generally held that the fact that a petitioner’s child was immunized in the past is not necessarily dispositive in determining whether the individual has genuine and sincere religious beliefs (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250) although it does have a bearing on the assessment of the sincerity of the alleged religious beliefs (see, Caviezel v. Great Neck Public Schools et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16 [2d Cir. 2012], cert. denied, 133 SCt 1997). According to the record, by letter dated August 18, 2016, respondent asked “what event or circumstances triggered your decision to begin to object to immunizations.” In response, petitioner T.M. directed respondent to portions of her August 8, 2016 letter which described in great detail the events in her life that caused her to cease vaccinations. As noted above, petitioner T.M. explained that she did not question the appropriateness of vaccines until she attended a church group in 2011; at that meeting, a friend indicated that vaccination was inconsistent with her religious upbringing; and petitioner T.M. subsequently arrived at the beliefs articulated in her request. Based on this record, I find that petitioners have provided sufficient information to establish the basis for a change of heart regarding the students’ immunizations.
Respondent further argues that petitioners’ beliefs in other forms of medical intervention are “logically ... contradictory, particularly where [they] support all types of medical intervention, treatments and procedures, but they do “not support immunizations....” However, individuals need not oppose medical treatment per se to qualify for a religious exemption, but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 FSupp 506). In their August 26, 2016 submission, petitioner T.M. further explained petitioners’ willingness to receive medical intervention in certain circumstances. Petitioner T.M. states that the ingredients in the vaccines to which she objects are blood cells and other sub-cellular “debris of once living animals,” as distinguished from the ingredients contained in an Epi-pen as “adrenaline, which is a hormone produced naturally by our bodies.” She also stated that her “objection is not limited to vaccination,” that she “would refuse any medical drug or procedure that violates any one of the two religious rationales [she] presented in [her] statement,” and that she would “not allow blood transfusions.” In addition, petitioner T.M. requested further clarification on a question posed in respondent’s August 18, 2016 letter pertaining to the conditions under which petitioners would seek medical intervention, stating “I cannot provide a list of every drug in the medical pharmacopeia [from] which I abstain ... [a]sk me about a drug, and I would be happy to review its possible religious implications, as I had with vaccines.” Respondent did not inquire further. Therefore, I find that petitioners have provided a sufficient explanation of how their religious beliefs allow medical treatment under limited circumstances.
To further support their religious exemption request, petitioners state that they object to specific ingredients contained in vaccines. In support of their exemption request, petitioners provided a detailed description of their objections to multiple ingredients listed in multiple vaccines according to the CDC website. Petitioner T.M. states:
Vaccines directly pollute and permanently alters [sic] the blood.... When I was researching vaccine ingredients, I was dismayed to discover that vaccines are comprised of: animal DNA, [live] and dead viruses, chicken embryos, animal kidney tissues, human cell[s] cultures and bovine serum.... We are also warned to keep our body pure from certain animals. Antigens included in the vaccines are cultured in serums taken from numerous animal and human sources.
Respondent has not submitted evidence to rebut the linkage between the required vaccines and these materials to which petitioners objects. Thus, I find that the record in this proceeding contains evidence of a possible linkage between vaccines and the use of materials to which petitioners object on religious grounds (see Appeal of B.S., 56 Ed Dept Rep Decision No. 17, 058; Appeal of B.O-G., 51 id., Decision No. 16,294).
Based on the record before me, I find that the weight of the evidence supports petitioners’ contentions that their opposition to immunization stems from sincerely held religious beliefs. Contrary to respondent’s assertion, there is nothing in the record which establishes that petitioners’ objections to immunizations are based solely on philosophical, scientific, medical or personal preference. Petitioner T.M. stated in her August 8, 2016 letter that she “still believe[s]” that vaccinations are “safe and effective.” Petitioners’ beliefs and their objection to immunizations appears to be principally based upon their interpretation of biblical passages, concepts and practices found in the Catholic faith and are religious in nature (Appeal of L.S., 48 Ed Dept Rep 227, Decision No. 15,845).
While respondent argues that petitioners’ interpretations and beliefs contradict those of the Catholic Church, as noted above 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). Indeed, in her August 8, 2016 letter, petitioner T.M. acknowledged that “most Catholics today accept vaccination,” but states that her opposition to vaccination is based on her own “understanding of the Bible and Christian teaching....” Moreover, aside from its own conclusory statements and assertions, respondent fails to identify any specific examples to support its characterization of petitioners’ beliefs.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent grant petitioners’ children a religious exemption from the immunization requirement specified in this decision pursuant to Public Health Law §2164.
END OF FILE
 K.M. appears to be missing the required meningitis vaccination and J.M. appears to be missing his final booster for MMR and varicella.
 While the court analyzed the merits of the record before it in the context of determining whether interim relief on this matter was properly granted, I note that, I am not bound by the courts findings in that regard because respondent’s challenge only concerned the issue of interim relief, which is governed by a different legal standard,. Moreover, I have received and considered additional submissions from the parties as part of the record in this appeal, which were not before the court at the time it rendered its decision.
 This chronology is consistent with the district’s records: in a letter from a district principal dated October 16, 2014, the principal indicated that the students “reciev[ed] thier regular vaccinations as recently as July, 2011” and that the first “missed vaccinations for T.M. was on July of 2013.”