Appeal of C.D. and A.D., on behalf of their children B.D. and D.D., from action of the Board of Education of the Carthage Central School District regarding immunization.

Decision No. 17,500

(September 7, 2018)

Office of Inter-Municipal Legal Services, attorneys for respondent, Dominic D’Imperio, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Carthage Central School District (“respondent”) that their children, B.D. and D.D. (“the students”), are not entitled to religious exemptions from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In July 2017, petitioners registered the students to attend school at one of respondent’s elementary schools.  A review of the registration records revealed that D.D. was not in compliance with New York State immunization requirements.  By request dated September 20, 2017, petitioners sought a religious exemption from the immunization requirements for the students.  On October 5, 2017, respondent denied petitioners’ request.  Respondent explained that D.D. could not remain in school without the required vaccinations, but that B.D.’s “vaccinations appear[ed] to be current.”  This appeal ensued.

Petitioners argue that their children are entitled to a religious exemption from immunization requirements based on their sincerely-held religious beliefs.  They seek a determination that the students may attend elementary school in respondent’s district and be exempt from vaccinations on religious grounds. 

Respondent asserts that the appeal is premature regarding B.D. and that the appeal must be dismissed for improper service.  Respondent argues that petitioners improperly assert arguments, including constitutional arguments, in the petition, which were not raised at the local level.  Additionally, respondent asserts that its religious exemption determination regarding D.D. was appropriate and should be upheld. 

Respondent maintains that petitioners’ reply impermissibly contains new arguments that should not be considered.  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.

To the extent that petitioners seek a determination regarding B.D., the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Because respondent’s determination did not deny B.D. admission to school, or take any other action with respect to B.D., petitioners have not demonstrated that they are aggrieved by any action of respondent regarding B.D. and instead seek an advisory opinion on an issue that is not yet justiciable.  Accordingly, the appeal with regard to B.D. must be dismissed as premature (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,415).

Moreover, the appeal must be dismissed in its entirety for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

Petitioners initially filed a petition with my Office of Counsel that did not include an affidavit of service.  The petition stated that copies of the petition would be sent by certified mail to, among others, respondent’s superintendent. 

By letter dated October 16, 2017, my Office of Counsel returned the petition to petitioners because it lacked an affidavit of personal service as required by 8 NYCRR §§275.8 and 275.9.  Petitioners subsequently submitted a copy of the petition together with, among other things, an affidavit of service indicating that petitioner A.D. served the petition by certified mail on October 20, 2017.  In an affidavit, respondent’s district clerk explains that petitioners never personally served her, a board of education member, or anyone else authorized to accept service on behalf of the district.  The district clerk further avers that the only parcel she received was a certified letter addressed to the superintendent.  There is no evidence that petitioners effectuated personal service as required by 8 NYCRR §275.8.  Therefore, service upon respondent was not properly made and the appeal must be dismissed (Appeals of L.A. and V.A., 57 Ed Dept Rep, Decision No. 17,424; Application of a Student with a Disability, 57 id., Decision No. 17,391).

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

 Although the appeal must be dismissed on procedural grounds, I note that petitioners retain the right to reapply for a religious exemption on the students’ behalf at any time and that respondent must evaluate any such application – including any evidence petitioners may submit – in accordance with the requirements of PHL §2164(9) and 10 NYCRR §66-1.3 (Appeals of L.A. and V.A., 57 Ed Dept Rep, Decision No. 17,424; Appeal of R.M., 57 id., Decision No. 17,214).

THE APPEAL IS DISMISSED.

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