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Decision No. 17,811

Appeal of T.K. and K.K., on behalf of their children T.K. and T.K., from action of the Board of Education of the Oceanside Union Free School District regarding immunization.

Decision No. 17,811

(January 29, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Oceanside Union Free School District (“respondent”) that their children, T.K. and T.K. (“the students”), are not entitled to attend school without meeting the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

The students attended school in respondent’s district at all times relevant to this appeal.  Prior to the events described in this appeal, respondent granted the students religious exemptions from the immunization requirements of PHL §2164.

On June 13, 2019, the Legislature repealed the religious exemption.  Although respondent advised petitioners that the students needed to be immunized to continue attending school, it appears from the record that the students did not obtain the required immunizations.  The students were excluded from school 14 days following the first day of school, on September 16, 2019.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 19, 2019.

Petitioners argue that the exclusion of the students from school violates the Dignity for All Students Act because they are being excluded based on their religious beliefs.  Petitioners also argue that it is unconstitutional for them to be forced to choose between their religious beliefs and attending school, citing the right to a free public education.

Respondent argues that the appeal is moot because of the repeal of the religious exemption.  Respondent also argues that the petition improperly challenges the constitutionality of a statute.

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).  Accordingly, to the extent that the petition raises novel issues of constitutional law or challenges the constitutionality of the repeal of the religious exemption, it must be dismissed.

To the extent that petitioners seek a religious exemption from the immunization requirements of PHL §2164, the appeal 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).

With the enactment of Chapter 35 of the Laws of 2019, effective June 13, 2019, no student may be exempted from required immunizations based on religious beliefs, such as the exemption claimed by petitioners in this appeal.  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).  As a result, the relief sought by petitioners may no longer be obtained, rendering this matter moot.  Consequently, petitioners’ request for a religious exemption must be dismissed as moot.

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