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Decision No. 17,176

Appeal of N.I., on behalf of her daughter S.I., from action of the New York City Department of Education regarding immunization.

Decision No. 17,176

(August 31, 2017)

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

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her daughter, S.I. (“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 daughter attended school in respondent’s district.  By letter dated November 16, 2016, petitioner sought a religious exemption from immunization pursuant to PHL §2164 for the student.  In the letter, petitioner explained that she had not had her children vaccinated “since 2006” because her turning point occurred after a discussion on vaccinations and religious beliefs with a high school friend.  Petitioner stated that, until that time, she “knew that abortion was against the teachings of the Catholic Church, but ... never had any direct knowledge that the cells of healthy aborted babies were being used for the development and research of vaccines.”

Petitioner explained that, shortly thereafter, she began her “research into the manufacture of vaccines and discovered the sinful origins of the products.”  In her November 16, 2016 letter, petitioner further stated:

In the early 1960’s the Pharmaseutical [sic] companies began developing vaccines using the cell lines from aborted baby fetuses.  In particular, the MMR, Hepatitis A, Chicken Pox, Poliomyelitis, Rabies and Smallpox vaccines....  I don’t believe in abortion (regardless of the reason), the death penalty, voluntary or involuntary euthanasia or the removal of a living soul from life support, when there is no evidence of life.

She also stated that she interpreted the Vatican’s position on this issue as follows: “The lawfulness of the use of these vaccines should not be misinterpreted as a declaration of the lawfulness of their production.  Formal cooperation is morally illicit.”  Petitioner also explained:

If I vaccinate voluntarily or by order of the law, I am directly involved in the original act of evil and, thereby, sanction the killing of innocent life....  As a Catholic, I do not believe in abortion since life begins at the first moment of conception.  Most vaccines have relied on the cells taken from aborted baby fetuses.  So, it was just to say that the pharmaceutical companies who manufactured those vaccinations were cooperating formally in a morally illicit manner and contradictory to my beliefs.

She further stated that, “[a]s a Christian, I know our bodies are God’s temple, which must remain pure and healthy.”  In support of her religious exemption request, petitioner cited to various Biblical verses and texts. She also stated that “in recent years, more and more aborted fetal cells are emerging for vaccine cultivation.”

In addition, petitioner stated that she objected to vaccinations because:

[V]accines contain different types of substances that defile the blood....  Foreign organic matter, in particular the foreign blood of animals, are contained in all vaccines, thereby making pure blood impure and thus a sin.  Vaccines, unlike other medical substances injected into our bloodstream, actually contain the most ancient of poisons, putrefied and decaying organic materials.  This defies the Holy Spirit that resides in our souls.

By memorandum dated December 20, 2016, respondent’s health service coordinator (“coordinator”) in the Office of School Health (“OSH”) 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 held “genuine and sincere religious beliefs which are contrary to immunization.”  The coordinator further informed petitioner that the student had all required vaccines “except for Tdap [Booster] and polio#4.”  The coordinator also informed petitioner that she could appeal the determination by arranging an interview with respondent’s health director (“health director”). 

On or about January 13, 2017, petitioner attended an interview with the health director.  The record indicates that, during the interview, petitioner was asked questions related to her opposition to immunizations and the religious basis for her beliefs. 

By memorandum dated March 24, 2017, respondent’s coordinator denied petitioner’s appeal, stating that the information provided during her appeal interview did not substantiate a finding that petitioner held genuine and sincere religious beliefs contrary to immunization.  This appeal ensued. Petitioner’s request for interim relief was granted on April 25, 2017.

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization.  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 rather are 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 petitioner’s reply. 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 they object 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).

Respondent contends that petitioner’s beliefs are not sincerely-held because, despite her claim that she ceased vaccinating her children in 2006, one of petitioner’s other children received a Tdap vaccination on October 27, 2014.  Respondent submits a printout from its Central Immunization Registry in support of this contention.  In her reply, petitioner contends that respondent’s records are incorrect because her child actually received a blood test – not a vaccination - on that date which revealed that her child “had immunity and, therefore ... was not given the Tdap vaccination.”  Notably, respondent has not submitted proof from an individual who has personal knowledge that a vaccine was administered to petitioner’s child or any other evidence that would verify the accuracy of the information in its database.  Therefore, on this record, I disagree with respondent that this information undermines petitioner’s claimed religious opposition to vaccinations. 

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).  To support her religious exemption request, petitioner stated in her November 2016 letter that “vaccines contain different types of substances that defile the blood” and which make “pure blood impure and thus a sin.”  Petitioner stated that “all vaccines” contain “[f]oreign organic matter, in particular the foreign blood of animals.” However, these statements do not, in and of themselves, establish a sincerely held religious objection to immunization (see e.g. Appeal of O.M and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of L.S., 50 id., Decision No. 16,180).

As described above, however, petitioner also objects to immunizations based on her opposition to abortion, which is religious in nature and is based upon her interpretation of Bible teachings and doctrines as well as her upbringing in the Catholic religion (see Appeal of D.H., 52 Ed Dept Rep, Decision No. 16,425; Appeal of B.O-G., 51 id., Decision No. 16,294).  In her November 2016 letter, petitioner stated that “because there are no alternative vaccines available in the United States, the number of vaccines that are developed in descendent cells of aborted fetuses is a grave crime against innocent human life.  There remains a duty to my own religious principles to reject participation with those who accept abortion for the development of vaccines or for the use in the research of future vaccinations.”

As described above, although petitioner cites to Biblical texts and religious materials, she further explains and specifies the precise nature and origin of her beliefs in her own words as described above in her November 16, 2016 exemption request.  In addition, at the liaison meeting, petitioner 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 Catholic upbringing, are religious in nature, well-articulated, consistent and straightforward and there is no evidence that petitioner’s position is not religious in nature or based on philosophical, scientific, medical or personal preference.

Nevertheless, upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of proof.  Petitioner’s objections to vaccination are grounded in her opposition to abortion and, by extension, fetal tissue obtained from abortions.  Specifically, petitioner states that “most vaccines have relied on the cells taken from aborted baby fetuses” and “vaccines contain different types of substances that defile the blood.”  Although these objections appear to be religious in nature and are based upon her interpretation of Bible teachings and doctrines as well as her Catholic upbringing (see Appeal of M.C., 55 Ed Dept Rep, Decision No. 16,805; Appeal of D.H., 52 id., Decision No. 16,425; Appeal of B.O-G., 51 id., Decision No. 16,294), other than her conclusory statements, petitioner has failed to demonstrate which vaccines, if any, contain such ingredients or provide any documentation which attempts 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).[1] 

Moreover, respondent submits 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 responds to petitioner’s contentions and states, among other things, that:

[M]any of the products used during the manufacturing of vaccines, in those instances when it is still present in the final product, would only remain in minute or undetectable amounts. Statements from parents seeking a religious exemption often include similar contentions regarding the 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 also avers:

[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.  All other school-required vaccines (DTP, Tdap, Hepatitis B, Hib, PCV and MenACWY) are available in presentations for which human embryo cell lines 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. 

Therefore, on the record before me, I find that petitioner has failed to demonstrate that 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.




[1] To the extent petitioner also objects to vaccinations because they contain “the foreign blood of animals,” I note that petitioner has similarly failed to prove a nexus between this substance and the contents of the student’s required vaccines.