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Decision No. 17,766

Appeal of M.E., on behalf of his son, N.E., from action of the Board of Education of the Corning-Painted Post Area School District, regarding immunization.

Decision No. 17,766

(October 10, 2019)

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel.

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Corning-Painted Post Area School District (“respondent”) that his son, N.E. (“the student”), is not entitled to a religious exemption from the requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2018-2019 school year, the student was enrolled in respondent’s school district.  The student had previously received a religious exemption from the immunization requirements of PHL §2164.

On February 19, 2019, petitioner and his spouse sought to enroll the student in a program jointly operated by the district and Corning Community College called the High School Learning Center (“HSLC”).  The student was not accepted into the program because, among other reasons, he had not yet passed a Regents examination, which was a prerequisite for admittance.

On or about June 12, 2019, the student sought admittance into the HLSC a second time.  Again, the student was not accepted into the program.  A lead teacher at HLSC explained to the student that he still needed to pass a Regents examination and demonstrate “additional commitment.”  The lead teacher suggested that the student could make himself a better candidate for admittance if he, for example, attended summer school, volunteered in the community or documented the hours in which he worked at a family business.  In June 2019, the student passed a Regents examination, thus satisfying that portion of HLSC’s admission criteria.

On July 3, 2019, the student registered to take two summer school classes with the district.[1]  On or about July 9, 2019, the summer school principal informed petitioner’s spouse that the student would need to show proof of immunization to attend summer school.  The record indicates that petitioner’s spouse informed respondent on July 16, 2019 that the student had decided not to receive immunizations.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 24, 2019.

Petitioner contends that the student held a valid religious exemption during the student’s education years and that their family is “not willing to abandon [their] religious beliefs or forego valid religious exemptions previously granted.”  Petitioner seeks an order providing that the student be allowed to attend summer school and attend district facilities, programs, and events without limitations.  While it is not entirely clear from the petition, petitioner appears to also seek a stay of the requirement that the student receive immunizations in order to attend school programs until “all cases and appeals challenging the constitutionality of the Vaccination Legislation have been fully and finally dismissed or resolved in favor of the State of New York, including without limitation potential appeals to the U.S. Supreme Court.”

Respondent argues, inter alia, that petitioner’s claims regarding the district’s summer school program should be dismissed for failure to join a necessary party, the Greater Southern Tier Board of Cooperative Educational Services, which administers the program, and as moot because the summer program has ended.  As to petitioner’s remaining claims and requests for relief, respondent asserts that unless the student complies with Public Health Law §2164, petitioner has not demonstrated a clear legal right to the relief requested.

As an initial matter, any claims concerning the student’s right to attend the summer program must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Therefore, since the record indicates that the summer program concluded on August 12, 2019, petitioner’s claim seeking the student’s enrollment in such program is moot (see Appeal of A.L., 58 Ed Dept Rep, Decision No. 17,442; Appeal of J.S., 57 id., Decision No. 17,134).

Petitioner’s request for, in effect, a religious exemption to immunization requirements must also be dismissed as moot.  Until June 13, 2019, Public Health Law §2164 contained an exemption from school-age immunization requirements for individuals holding genuine and sincere religious beliefs.  Specifically, Public Health Law §2164(9) provided:

[t]his 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 [of immunization] shall be required as a prerequisite to such children being admitted or received into school or attending school.

However, on June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of §2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.[2]  With this enactment, no student may be exempted from required immunizations based on religious beliefs.  Therefore, to the extent petitioner seeks a religious exemption, the appeal must be dismissed as moot.

Moreover, the legislative intent of Chapter 35 is to protect the public health by ending non-medical exemptions from immunization (see Sponsor’s Mem. Bill Jacket, L 2019, ch 35).  Given this intent, I decline to order the extraordinary relief sought by petitioner; namely, a stay until resolution of all legal challenges to the repeal of religious exemptions under Public Health Law §2164.  In this respect, I note that the Albany County Supreme Court recently denied preliminary injunctive relief to several parents’ challenge to the Legislature’s repeal of the religious exemption (see F.F. on behalf of Y.F. v. State, _NYS3d_, 2019 WL 4050472, 2019 NY Slip Op 29261 (Sup. Ct. Alb. Co. Aug. 23, 2019), motion for injunction pending appeal denied, App. Div. Docket No. 529906 (3d Dept. Sept. 5, 2019).

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




[1] In an affidavit submitted by respondent, respondent’s supervisor of special education avers that petitioner’s spouse indicated to her that the student had been “conditionally accepted” into the HLSC program and that she wished to ensure the student’s acceptance by having him attend the summer classes.  According to respondent, the summer school principal contacted an HLSC administrator, who denied that the student had been conditionally accepted into the program.


[2] PHL §2164(7)(a), as also amended by Chapter 35 of the Laws of 2019, provides, “[n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days, without [a certificate of immunization] or some other acceptable evidence of the child’s immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenzae type b (Hib), meningococcal disease, and pneumococcal disease; provided, however, such fourteen day period may be extended to not more than thirty days for an individual student by the appropriate principal, teacher, owner or other person in charge where such student is transferring from out-of-state or from another country and can show a good faith effort to get the necessary certification or other evidence of immunization or where the parent, guardian, or any other person in parental relationship to such child can demonstrate that a child has received at least the first dose in each immunization series required by this section and has age appropriate appointments scheduled to complete the immunization series according to the Advisory Committee on Immunization Practices Recommended Immunization Schedules for Persons Aged 0 through 18 Years.”