Appeal of STUDENTS WITH DISABILITIES, by their parent, from action of the New York City Department of Education regarding immunization.

Decision No. 17,248

(November 6, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Serena Longley, Esq., of counsel

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

During the 2013-2014 school year, the students were enrolled in respondent’s school district. By a form dated June 24, 2013, petitioner requested a religious exemption to immunization on behalf of her youngest son who was scheduled to attend kindergarten, asserting, among other things, that she was a “born again Believer in Christ Jesus” who lives “according to God’s word (law).”  Petitioner further states:

A[ll] [v]accinations are a violation to God’s word.  I oppose to [sic] all immunizations, which are harmful to my children....  Vaccines are made with toxic chemicals that are injected into the bloodstream by vaccination.  A[ll] vaccines are made with foreign protein (virus and bacteria), and some vaccines are made with genetically engineered viral and bacterial materials.

By memorandum dated July 16, 2013, the district’s health services coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation petitioner submitted was:

[I]nadequate 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 MMR#2.

The memorandum also informed petitioner of the district’s internal appeals process, which included 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 and her husband met with respondent’s health director on October 18, 2013.  The record indicates that during the interview, petitioner and her husband were asked questions about their opposition to immunizations and the religious basis for their beliefs.  In response, petitioner asserted, among other things, that she and her husband performed intense research after their youngest son’s vaccination at age 15 months and learned that vaccines contain “dangerous ingredients,” and are “poisonous,” and that “there is no found proof that vaccines will build the immune system or are even safe.”  In further support of her exemption request, petitioner also submitted documentation regarding her husband’s involvement in an Alabama church and registration to perform marriages in New York City. 

On or about October 18, 2013, petitioner completed a second identical exemption request for her older son, who was attending sixth grade in respondent’s district and was missing the “Tdap booster” vaccination.  

By memorandum dated October 30, 2013, respondent’s coordinator denied petitioner’s exemption request for both students, stating that the documentation submitted by petitioner and the information provided during her appeal 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 denied on November 22, 2013.

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.  Petitioner also claims that she was not notified that her request was denied until she was contacted by a school clerk in September 2013. 

Respondent maintains petitioner was notified of the denial of her exemption request by memorandum dated July 16, 2013.  Respondent asserts that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objections to immunizations are not based on genuine 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.

Initially, I note that, while petitioner asserts in her petition that she was “not notified by phone call or mail” of the coordinator’s denial of her request, the coordinator avers that she so informed petitioner by memorandum dated July 16, 2013.  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).  Petitioner did not respond to this contention in a reply.  Moreover, petitioner submits a copy of the July 16 memorandum as an exhibit to her petition herein.  Therefore, on this record, petitioner has not established that the coordinator failed to send her a copy of the July 16 memorandum (see e.g. Appeal of C.M., 57 Ed Dept Rep, Decision No. 17,152).

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 regard to this appeal, I decline to consider such claims.

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 children 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).

As noted above, 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:

I believe that the religious exemption was denied because both of my children had [the] majority of the immunizations taken.  I say this I have not always known the truth about the immunizations.  Because of my ignorance I did what was told by the pediatricians[:] that it was safe for my children.  In much prayer to God (Conscience), God led me to extensive research of how harmful vaccines are. I [sic] and my husband decided that all of our bodies belong to God.  We will not harm our bodies with vaccines.

According to the record, although respondent’s 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 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).  Nevertheless, 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 of her request was arbitrary and capricious.

Petitioner’s initial statement consisted of citations to Biblical verses, with minimal elaboration or explanation as to how these verses related to her religious beliefs and her opposition to vaccination.  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 claimed in her initial exemption request that “[a] conflict arises if you accept God’s warning not to mix the blood of man with the blood of animals” and that vaccines contain “aborted fetal tissue.”  However, petitioner does not allege which vaccines, if any, contain such ingredients and does not provide any documentation which establishes a nexus between the students’ remaining required vaccinations (here, the “MMR#2” vaccine and “Tdap” booster) and her claimed religious objection to the ingredients of any such vaccines (cf. Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294). 

 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).  Indeed, in her petition, petitioner states that “[a]ll immunizations are harmful” and the “ingredients alone are hazardous.”  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.

THE APPEAL IS DISMISSED.

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