Appeal of V.L., on behalf of her son J.L., from action of the New York City Department of Education regarding immunization.

Decision No. 17,435

(July 6, 2018)

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

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, James M. Dervin, Esq., of counsel

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

During the 2015-2016 school year, the student attended school in respondent’s district.  In a letter dated November 23, 2015, petitioner sought a religious exemption from immunization pursuant to PHL §2164 for the student, explaining how her familial relationships, Catholic upbringing and faith played an important role in her life, as well as the hardships she and her family had endured.  Petitioner asserted that she was “born and raised in a family of practicing Roman Catholics” and “God was the center of our home, our strength, [and] faith.”  Petitioner further explained that she attended parochial school, “grew up surrounded by believers” and “was raised to honor, respect and love God.”  Petitioner stated that “the bible teaches us that it is imperative to keep our blood pure” and “our bod[ies] [are] made as God intended, in his image, perfect.”  Petitioner further explained:

As a mother [I am] responsible for guarding [my] children’s bodies and souls.  Any abuse of their blood means an abuse of their souls.  To defile our body or blood is to play God. [I] would be dismissing God and denying my faith.

Petitioner further contended:

Antigens included in vaccines are cultured in serum from various animals and even human sources.  There is no doubt that injecting these genetic materials and disease infected cells of animals found in vaccines contaminate our children’s blood ... as a practicing Catholic, I cannot demonstrate a lack of faith in God by accepting vaccines.

In support of her religious exemption request, petitioner cited various Biblical verses and texts and explained her understanding and interpretation of each verse and text.

By memorandum dated August 8, 2016, respondent’s health service coordinator (“coordinator”) determined that “there [was] insufficient documentation to determine whether a religious exemption from immunization is warranted ...” and requested that petitioner provide additional information and documentation within ten days.  By letter dated September 21, 2016, petitioner responded and further explained her beliefs as outlined in her November 23, 2015 exemption request. 

By memorandum dated September 22, 2016, the coordinator denied petitioner’s exemption request, stating 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.”  Petitioner was further informed that the student “had all of the required vaccines except for the Tdap Booster and varicella#2.” The coordinator also informed petitioner that she could appeal the determination by arranging an interview with respondent’s health director (“health director”). 

By letter dated October 15, 2016, petitioner submitted additional information to respondent’s coordinator which largely repeated the information contained in her November 23, 2015 and September 21, 2016 submissions.

Petitioner met with respondent’s health director on October 20, 2016.  The record indicates that, in response to the health director’s questions about her sincerely-held religious beliefs, petitioner again repeated the information and contentions contained in her original exemption request.

     By memorandum dated October 28, 2016, the coordinator denied petitioner’s appeal, stating:

The documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.

This appeal ensued.  Petitioner’s request for interim relief was granted on December 2, 2016.[1]

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs and seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164.  Petitioner also claims that respondent improperly delayed a decision regarding her exemption request, that respondent failed to provide her with specific reasons for the denial of her request, that respondent’s appeal process is flawed and that its denial was arbitrary and capricious.  Petitioner also appears to assert that respondent’s actions violated her due process rights under the Federal and State constitutions.

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 genuine 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 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 A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319). Therefore, to the extent 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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, §2164(9) provide:

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 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 FSupp 2d 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 FSupp 2d 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 a petitioner’s statements and may consider a 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

First, petitioner complains that respondent improperly delayed making a decision on her immunization request.  It appears from the record that, after submitting her request on November 23, 2015, the request was not provided to the coordinator until “[o]n or around July 26, 2016.”  Petitioner is correct that this was an inordinate amount of time and that respondent has offered no excuse for the delay.  However, it appears that the student was allowed to attend school during this time.  Thus, petitioner did not suffer any prejudice as a result of the delay.  I admonish respondent, however, to respond to religious exemption requests in an expeditious manner.

Next, petitioner asserts that respondent failed to provide a sufficient explanation of the reasons for denying her request for a religious exemption.  In support of 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.”  As described above, the August 8, 2016, September 22, 2016 and October 28, 2016 memoranda essentially state that petitioner failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  Respondent states in its answer that it found that “the record as a whole did not substantiate a finding that petitioner held a genuine and sincere religious belief contrary to immunizations.” The coordinator elaborates in her affidavit that she found there was “insufficient documentation to determine whether a religious exemption from immunization was warranted.” 

For purposes of this appeal, respondent has articulated a sufficient rationale for its determination.  Further, petitioner has had ample opportunity to respond to respondent’s reasons for its denial in this appeal and has indeed done so (see Appeal of a Student With a Disability, 57 Ed Dept Rep, Decision No. 17,169).  Furthermore, I note that according to the record, at the time of petitioner’s November 23, 2015 religious exemption request, as noted above, the student remained enrolled in respondent’s schools. Accordingly, I will not sustain the appeal on these grounds.  However, I admonish respondent to provide parents with appropriate written communications in a timely manner articulating the specific reasons for the denial of a religious exemption in accordance with the Department’s guidance.

I also find no merit to petitioner’s contention that respondent improperly requested that petitioner submit additional information.  PHL §2164 and its implementing regulations state that respondent must make the ultimate determination on whether to grant a religious exemption.  That determination necessarily includes the ability to seek additional information, if deemed necessary (10 NYCRR §66-1.3[d]).  Upon review of the record, I find that it was appropriate for respondent to request additional information and supporting documentation from petitioner to ascertain petitioner’s religious beliefs.

 The record indicates that one factor considered by respondent in denying petitioner’s exemption request was the student’s prior immunization history. I have previously held that 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, petitioner explained that her critical turning point on vaccines occurred “in around May of 2013 after she suffered a miscarriage.”  Petitioner further reported that, thereafter, she attended a support group and that “in speaking with a fellow member of that group, Josephine, she first learned of certain biological components, which are contained in vaccines, and learned of various biblical passages.” Petitioner explained that she was briefly introduced to issues “relating to the special consideration of blood as referenced in the bible, and how vaccination undermines her faith” and “through independent research and immersion into the bible, [p]etitioner found support for these interpretations.”  Accordingly, the student’s prior immunization history and the fact that petitioner changed her mind concerning vaccination does not evince a lack of sincerity or diminish the sincerity of petitioner’s religious beliefs (see e.g. Appel of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095). 

Further, petitioner acknowledges that she would condone medical intervention “as long as it doesn’t conflict with my faith.”  Petitioner states “if my son needed an x-ray or an aspirin, that’s fine. If it were anything else, I would have to research it.” Petitioner acknowledges that her son uses an EpiPen for “both food allergies and food sensitivities” and specifically states that use of an EpiPen is consistent with her religious beliefs because “EpiPens contain the active ingredient adrenaline, which is a hormone produced naturally by the body” in contrast to vaccines which contain “blood cells, viral particles and cellular debris from animals - which is precisely proscribed in the bible.” Prior Commissioner’s decisions have held that the fact that a petitioner would consent to medical treatment of a sick child is not necessarily determinative (see e.g. Appeal of E.P. and L.P., 57 Ed Dept Rep, Decision No. 17,310).  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, the appeal must be dismissed.  Petitioner’s citations to biblical verses and passages are not sufficient to establish that she holds genuine and sincere religious beliefs against immunization (see Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971).  Petitioner’s arguments concerning the impurity of blood form a substantial part of her religious beliefs as set forth in her written statement.  The portion of petitioner’s religious exemption request devoted to her theological beliefs is organized under two headings: “Do Not Partake of the Blood,” and “The Word of the Lord is Flawless.”  Each is approximately one and one-half to two pages long.  The first section begins with petitioner’s statement that: “[t]o start off[,] I decided to research what was actually in vaccines.”  According to petitioner, she discovered that:

Vaccines contain animal-based matter.  In most cases, blood cells from cows, monkeys, and chickens, viruses and bacterium. These biological components, these impure substances, were being directly injected into my son’s blood and thereby altering God’s craftsmanship.

Petitioner proceeds, at length, to explain why such ingredients are “impurities” that violate the religious injunction to “keep our blood pure.”  In the second section of her statement, petitioner explains that she is opposed to all vaccinations and that “[t]hose that have faith in God do not require a vaccine back up plan,” which would demonstrate a “lack of faith in God.”

Although petitioner’s request includes statements that are religious in nature, her general statements about God, the perfection of the immune system and defiling the of blood, and citations to Biblical verses and passages, do not, in and of themselves, 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 F. Supp. 2d 414 [EDNY 2010], aff’d 500 Fed Appx. 16 [2d Cir. 2012], cert. denied 133 S.Ct. 1997 [2013]). 

As noted above, petitioner’s opposition to immunization is also based in part on her assertion that vaccines contain certain animal-based ingredients that are “impurities” which violate the religious mandate to “keep our blood pure.”  However, petitioner appears to seek an exemption from all vaccines, irrespective of whether they derive from animal tissue, and fails to specify or provide any evidence to indicate which, if any, vaccines actually contain such tissue.  This undercuts her argument that her opposition to immunization is religious in nature (see Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250).

The record as a whole lacks evidence of sincerely-held religious objections to immunizations.  Petitioner’s statements generally refer to the perfection of God and/or the immune system which, as noted above, are insufficient by themselves to demonstrate a sincerely-held religious belief (see Appeal of E.P. and L.P., 57 Ed Dept Rep, Decision No. 17,310).  Accordingly, 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.

THE APPEAL IS DISMISSED.

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