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Decision No. 17,169

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education regarding immunization.

Decision No. 17,169

(August 29, 2017)

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

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Lesley Berson Mbaye, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, L.M. (“the student”), 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 attended school in respondent’s district.  In a letter signed October 31, 2016, petitioner sought a religious exemption from immunization pursuant to PHL §2164 for the student, explaining how her familial relationships, Catholic upbringing and traditions played an important role in her life and provided a “strong foundation of my personal religious beliefs.”  Petitioner stated, among other things, that “I believe God is the Creator, our Protector and is Omnipresent.  I believe God is always reaching out to guide us....”  She also stated:

The body is a Holy Temple of God...  We are not to defile it.  In this effort I select for my family organic, non-gmo foods, non-pesticide wholesome foods as God intended.  I visit an organic butcher shop for meats so I can supervise where my food comes from and how it is handled.  Vaccines are not food and are not part of body maintenance as God intended and therefor[e] are not allowed by my faith.  

In support of her religious exemption request, petitioner cited various Biblical verses and texts. Petitioner’s exemption request also contained a letter from her attorney dated October 28, 2016, which stated:

[a]ny exclusion of [the student] from school or any form of discrimination against him is a violation of my client’s rights to the exemption under state law, and is a violation of the First Amendment to the Constitution of the United States that protects my client’s free exercise of religion. 

By memorandum dated December 8, 2016, respondent’s health service coordinator (“coordinator”) denied petitioner’s immunization exemption request on the grounds that petitioner’s documentation was inadequate to warrant an exemption and did not substantiate that petitioner holds “genuine and sincere religious beliefs which are contrary to immunization.” Petitioner was further informed that the student had “most of the required vaccines except for DPT#4, Polio#3, MMR#2, Hep.B#3 and varicella#2.”  The coordinator also informed petitioner that she could appeal the determination by arranging an interview with the health director for the Children First Network (“CFN liaison”). 

On January 20, 2017, petitioner interviewed with the CFN liaison.  The record indicates that, during the interview, petitioner was asked questions related to her opposition to immunizations and the religious basis for her beliefs.  Petitioner also submitted additional written information to the coordinator in a letter dated January 20, 2017.  In her written submission, petitioner asserted, for the first time, that part of her opposition to vaccination was the “use of fetal tissue and animal parts/blood to cultivate vaccines....”  She also stated that she had “always felt uneasy and nauseated every time [she] vaccinated [her] son” and that she “was in a dark place in [her] life, devoid of faith and God.”  Petitioner further acknowledged that her religious beliefs concerning immunizations changed when she “submitted [herself] back into God’s arms [she] realized he is an all knowing creator and that by using vaccines casts doubt on [her] faith in his omniscience....”  When asked about medical intervention, petitioner explained:

I am not opposed to medical intervention, medicines, x-rays or blood transfusions.  If me or my child is sick or in crisis, I seek all avenues, including prayer, orthodox medicine, and holistic medicine. But I am against those things in preemption. If you give them in preemption, then you are questioning the Creator[’]s design, casting doubt on God’s omnipotence and omniscience.

In further support of her exemption request, petitioner also submitted two letters from Catholic priests who attested to petitioner’s “devotion to God” and “deep faith.”

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 appeal interview did not support a finding that she held genuine and sincere religious beliefs which are contrary to immunization.  This appeal ensued. Petitioner’s request for interim relief was granted on April 7, 2017.

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization. Petitioner also claims that respondent acted arbitrarily, denied her due process rights and failed to provide her with specific reasons for the denial of her request. Petitioner seeks a religious exemption for the student 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 are instead based on medical, moral, philosophical, political, scientific and/or sociological objections to immunization.  Respondent further asserts that its determination was rational, not arbitrary or capricious, and in all respects proper.

I must first address the 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 petitioner attempts to raise constitutional issues in this appeal, I decline to consider such constitutional claims.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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).  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 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).

Although respondent’s coordinator avers that one factor she considered in denying petitioner’s request was the student’s immunization history, the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Indeed, both during the CFN liaison interview and in the instant appeal, petitioner has adequately explained the reasons for her change of heart with regard to immunizing the student.

Respondent also argues that petitioner’s assertion that her opposition to immunization is based on sincerely-held religious beliefs is undermined by her statements to the CFN liaison that she is not opposed to medical intervention in all circumstances and would allow the use of medicine, x-rays, or blood transfusions under certain circumstances.  In this regard, I note that the fact that petitioner would consent to medical treatment of a sick child is not necessarily determinative.  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). 

Nevertheless, 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.  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).

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, cert. denied 133 SCt 1997).  On this record, I find that petitioner’s citations to Biblical texts and her general statements about God and the perfect immune system 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).

I also note that, although petitioner also claims that “[p]harmaceutical companies use human cells from aborted fetal tissue, animal blood and animal parts in the development of vaccines,” she has failed to allege which vaccines, if any, contain such ingredients, or to establish a nexus between the student’s required vaccines and her claimed religious objection to the vaccines or their ingredients (cf. Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).

With further respect to this issue, respondent submitted an affidavit from Jennifer Rosen, M.D., Director of Epidemiology and Surveillance within the New York City Department of Health and Mental Hygiene’s Bureau of Immunizations (“Rosen Affidavit”) which states, among other things, that:

[S]tatements from parents seeking a religious exemption often include similar 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 final product. 

Dr. Rosen further states:

[C]ell lines originally derived from human embryo cells are used to make only a few vaccines, specifically for the school-required vaccines, varicella, rubella and one presentation of polio vaccines.  The cells were originally obtained from elective termination of two pregnancies in the 1960s.  The original fetal tissue came from elective abortions that were not performed for the purpose of producing vaccines.  These same cells have continued to grow in the laboratory, and no further sources of human cells have been needed to make vaccines.  When these cell lines are used, multiple purification steps are taken to ensure that the cells are not included in the final vaccine product.  Moreover, there are alternative polio vaccines for which human embryo cell lines are not used in the production.  Further, the hepatitis B vaccine is available in a presentation for which human embryo cell lines and animal products are not used. 

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

Petitioner additionally challenges the procedure by which the district evaluated her exemption request.  Specifically, petitioner contends that respondent’s appeal process is flawed, that during the CFN liaison interview the CFN liaison remarked “several times that the petitioner’s submissions were ‘perfect’ and ‘great,’” that petitioner “didn’t overlook anything,” and that the CFN liaison “‘liked’ the way petitioner drafted her statements” and that the CFN liaison “commented, as she wrote on the questionnaire, ‘parent has a genuine religious belief against immunization.’” Respondent denies these allegations in its answer.  However, even assuming the truth of petitioner’s allegations, petitioner admits that she was made aware that the CFN liaison was not the “final decision maker” and that petitioner’s written response to the interview questions and additional submissions would be further assessed and reviewed by respondent’s coordinator who would make the final decision.  Accordingly, I find no merit to these claims.

Petitioner also asserts that respondent failed to provide sufficient explanation of the reasons for denying her request for a religious exemption.  To support her claim, petitioner relies on guidance from the New York State Education Department (“Department”), which states that a decision to deny a request for a religious exemption must be in writing and that “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”  Additionally, I note that previous Commissioner’s decisions have recognized that a school’s use of form letters is not per se unreasonable, and that in a school district of respondent’s size and organizational complexity, modified form letters may be an efficient and effective means of communicating with parents in certain situations (Appeal of L.S., 50 Ed Dept Rep, Decision No. 16,180; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165).  As described above, the December 8, 2016 and the March 6, 2017 memoranda taken together notified petitioner that her documentation was deficient and did not demonstrate sincerely-held religious beliefs which are contrary to immunization.  The coordinator elaborates in her affidavit that petitioner failed to provide sufficient documentation or information to substantiate a finding that petitioner held a genuine and sincere religious belief contrary to immunizations.  For purposes of this appeal, respondent has articulated a sufficient rationale for its determination, to which petitioner has had ample opportunity to respond (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410) and has indeed done so.  However, I remind respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the Department’s guidance.

As described above, on this record, 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 (see Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670).  The appeal, therefore, must be dismissed.

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