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Decision No. 17,158

Appeal of D.B., on behalf of her son E.L., from action of the New York City Department of Education regarding immunization.

Decision No. 17,158

(August 22, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Omar Tuffaha, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, E.L., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2016-2017 school year, petitioner’s son E.L. (“the student”) was enrolled in respondent’s school district.  By letter dated November 23, 2016, petitioner requested a religious exemption to immunization on behalf of the student in which she asserted:

I hold genuine and sincere religious beliefs that prohibit immunization.  God wants us to respect life and blood. I have come to believe that immunizations are not respectful to life and blood ... I seek truth and a lawful, safer, healthier path in accordance with the law of God. 

By memorandum dated January 31, 2017, the district’s health services coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation petitioner submitted was:

inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  [The student] has all of the required vaccines except for the Tdap booster.

The memorandum also informed petitioner of the district’s internal appeals process, which included arranging an interview with respondent’s health director, and further notified petitioner that if her appeal was denied, she could commence an appeal pursuant to Education Law §310.

Petitioner met with respondent’s health director on February 16, 2017.  The record indicates that during the interview, petitioner was asked questions about her opposition to immunizations and the religious basis for her beliefs.  In response, petitioner asserted, among other things, that the student “was placed in my care by the Hand of God.  I am his teacher [and] protector.  I believe that immunizations are harmful and therefore cannot allow further injections.”  Petitioner further stated:

If vaccines were safe (which they are not), I would reconsider my position....  I have a 32 year old pregnant daughter. She was fully immunized. I fear immunizations may harm my grandson. Vaccines contain thimerserol (mercury), a known neurotoxin, aluminum, polysorbate 80, DNA....  My religious belief is that my child is entrusted to me by God and I cannot do harm to him by injecting these poisons....  I listen to God.  My instruction is to not further contaminate my child ... It is my belief that vaccines assault and compromise the immune system.  God gave us [the] ability to heal ourselves.  With proper sanitation and a healthy lifestyle (in all ways) I can best promote the well-being of my son and myself and be in harmony with my creator.

Petitioner further explained that “[w]hen my daughter was young, I had no idea that vaccines were poisonous ... then I found out ... I decided I cannot/will not risk the health of my child with another injection.”

By memorandum dated March 6, 2017, respondent’s coordinator denied petitioner’s appeal, stating that the documentation submitted by petitioner and the information provided during her interview with the health director did not substantiate a finding that she held a genuine and sincere religious objection to immunization.  This appeal ensued. Petitioner’s request for interim relief was granted on April 18, 2017.

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization and seeks a religious exemption from immunization pursuant to PHL §2164.

Respondent maintains that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objections to immunizations are not based on genuinely and sincerely held religious beliefs, but rather are based on medical, philosophical, political, scientific or sociological objections to immunizations.  Respondent further asserts that the determination was rational, not arbitrary or capricious, and in all respects proper.

The appeal must be dismissed.  PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, PHL §2164(9) provides as follows:

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 for her child 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; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  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).  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 K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 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 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.  Petitioner asserts in her petition:

[O]ver the last two years, I have been involved in Bible study with Jehovah’s Witnesses, have been taking courses in Christian scientology and have included them in my personal beliefs of the Law of God, and have been refocusing my life in service of God, as I’ve strived my entire life.  I believe that God protects his children and those who adhere to his Law, as well as provides the gift of healing by prayer to those who are faithful to his Law.  I believe, as I have learned from study, prayer, class, and the word of God, that by using human, animal or other unnatural tissues in our own bodies, we are defiling ourselves and God’s spirit.  [A]s set forth in my Exemption Request, I stated clearly that God’s will had become clearer to me, as I’ve learned of the power and ability to heal ourselves through healthy lifestyle, including prayer and keeping sacred our bodies from the blood and tissues of humans and animals, and receiving care that is consistent with my religion and God’s Law.

According to the record, although respondents’ coordinator considered the student’s prior immunization history as one factor in denying petitioner’s religious exemption request, I have previously held that the fact that 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 F Supp 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).  Petitioner explained in her exemption request letter that “I would not have immunized my children if I knew then what I know now” and further explains in the instant petition “I had not fully understood God’s Law in 2015.  I have sought and found forgiveness from My Lord, and do not wish to expose [the student] to unnecessary medical intervention when we have the gift of healing through God with prayer.”  Therefore, I find that, while petitioner provided sufficient information to establish the basis for her change of heart regarding the student’s immunizations, she has not, as described below, met her burden of proof in establishing that her opposition to immunization stems from sincerely held religious beliefs or that respondent’s denial was arbitrary and capricious.

Respondent contends that the contradictions and inconsistent statements provided by petitioner throughout the course of her religious exemption request and the instant appeal demonstrate that her opposition to immunization is based on general medical concerns or personal philosophy rather than a specific religious belief against immunization.

I find that petitioner’s general statements are insufficient to establish the religious basis or origin of petitioner’s 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).

Beyond such general statements, petitioner claims that vaccines contain “thimerserol (mercury), a known neurotoxin, aluminum, polysorbate 80, DNA” and the “blood and tissues of humans and animals.”  However, petitioner does not allege which vaccines, if any, contain such harmful ingredients and does not provide any documentation which establishes a nexus between the student’s remaining required vaccination (here the “Tdap” booster) and her claimed religious objection to the ingredients of any such vaccine (cf. Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  Furthermore, respondent provides an affidavit from Jennifer Rosen, M.D., Director of Epidemiology and Surveillance within New York City Department of Health and Mental Hygiene’s Bureau of Immunizations (“Rosen Affidavit”) which states, among other things, that:

Statements from parents seeking a religious exemption often include contentions regarding ingredients of various vaccines.  As a result, our medical staff often consult with vaccine manufacturers to confirm what is and is not used in the manufacturing process, and what may or may not remain in the actual finished product.  This information is readily available in materials published by the Centers for Disease Control and Prevention (“CDC”), and included in the vaccine package inserts approved by the Federal Drug Administration (“FDA”) and available to the public.

Dr. Rosen also states:

Regarding petitioner’s statements concerning aluminum and polysorbate 80, the FDA and CDC have extensively addressed the safety of these ingredients and the purpose of incorporating them into some vaccines (namely that they serve as adjuvants, enhancing the immune response of vaccinated individuals). Likewise, the FDA and CDC have addressed the safety of Thimerosal, which, notably, is not used in the Tdap vaccine.

Weighing petitioner’s conclusory allegations against the specific evidence submitted by respondent, petitioner has failed to prove that the student’s remaining required vaccine contains the ingredients which she identifies in her petition as objectionable.   

Accordingly, while the record reflects that petitioner may sincerely object to immunizations, the crux of the inquiry 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 SCt 1997).  The record, as a whole, lacks evidence that petitioner holds a sincerely-held religious objection to immunizations.  Accordingly, I find that petitioner has failed to demonstrate that respondent’s determination was 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.