* Subsequent History: Matter of Palma v New York State Educ. Dept.; Supreme Court, Albany County; Judgment dismissed petition to review; July 24, 2008. *

Appeal of R.P. and R.P., on behalf of their son L.P., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding immunization.

Decision No. 15,648

(August 28, 2007)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Bayport-Blue Point Union Free School District ("respondent") that their son, L.P., is not entitled to an exemption from the immunization requirements under Public Health Law ("PHL") §2164. The appeal must be dismissed.

In 2005, Mrs. P registered L.P. for kindergarten in respondent’s district commencing September 2005.  The record contains a copy of three Vaccine Administration Records (“VAR”) for L.P.  One VAR is from L.P.’s former pediatrician’s office (West Sayville Pediatrics) indicating that he lacked the MMR and third hepatitis-B (“hep-B”) immunizations required for admission to kindergarten.  According to the school nurse, Mrs. P brought the VAR with her at the time of registration and the nurse informed Mrs. P. that L.P. still needed both immunizations.  Mrs. P. denies bringing the VAR or discussing immunizations with the nurse.  She instead asserts that the VAR was sent directly from the doctor’s office to the school, that the nurse was not present at registration, and that she was unaware that L.P. needed further immunizations.  Mrs. P. admits, however, that on separate dates in August 2005, L.P. received a second MMR and a fourth DPT immunization (which is not required for kindergarten admission), but did not receive the third hep-B.

According to the nurse’s affidavit, in June 2006 she noticed that the date on L.P.’s VAR for the third hep-B was unclear, so she telephoned the doctor’s office (a different pediatrician) for clarification. She was informed by the office that L.P. had never been given the third hep-B.  Apparently, the doctor’s office subsequently sent to the school a third VAR that had no date indicated in the box for the third hep-B.  The parties do not dispute that the school nurse then telephoned Mrs. P. and informed her that L.P.’s VAR showed him missing the third hep-B, and Mrs. P. informed the nurse that she and her husband were no longer vaccinating their children.  The nurse informed Mrs. P. that she would have to write to the superintendent.

By letter dated August 9, 2006, respondent’s superintendent informed Mrs. P. that district records showed that L.P. had not received all required immunizations.  The superintendent requested that Mrs. P. provide proof of immunization to the principal of the Academy Street Elementary School, which L.P attended, to insure that he could return to school in September 2006.  The superintendent also informed Mrs. P. that, if she wished to claim a religious exemption for L.P., she should do so in writing as soon as possible.

By letter to the superintendent dated August 16, 2006, petitioners requested an exemption from the immunization requirement for L.P., stating:

[We] hold genuine and sincere personal religious beliefs which are inconsistent with these medical procedures.  The practice of vaccination is contrary to our conscientiously held religious beliefs and practices, and violates the free exercise of our religious principles.  By declaring that we hold such convictions and presenting them in writing to you, we are complying with the immunization exemption provisions of NYS Public Health Law 2164 Sub. 9. .... It is a violation of the Establishment Clause of the First Amendment to the Constitution for any institution representing government, to inquire into the details of one’s religious beliefs for the purpose of determining the truthfulness or genuineness of said beliefs.

Petitioners attached a signed and notarized copy of the “Request for Religious Exemption to Immunization Form-Parent/Guardian Statement” (“form”) from the State Education Department’s (“Department”) website, but did not submit any further information or statements describing their religious beliefs.  Rather, they used the form to state constitutional objections to the law requiring immunizations as a condition to attending public school.

By letter dated August 21, 2006, the superintendent notified petitioners of the district’s right to inquire about their religious beliefs and requested a meeting with petitioners, the district’s counsel and the assistant superintendent for curriculum, instruction, and general administration.  A two-hour meeting eventually occurred on September 18, 2006, at which the district representatives, petitioners and their then-attorney were present.  The meeting was apparently recorded, but neither party has provided a copy of the recording or transcript in this appeal.  L.P. was permitted to begin school even though the issue had not been resolved.

By letter dated September 22, 2006, the superintendent notified petitioners that respondent intended to consider their exemption request at its September 27, 2006 meeting.  He informed them that L.P could continue in school until respondent rendered a decision.

Between December 2006 and January 2007, several rounds of correspondence ensued.  These communications followed respondent’s counsel’s request for an additional meeting to review information that allegedly came to light after the initial September 18 meeting.  By letter dated February 6, 2007, respondent’s counsel concluded that petitioners had no interest in an additional meeting and informed their counsel that respondent would therefore proceed to act on the exemption request.

By letter dated February 28, 2007, respondent’s president notified petitioners that respondent had denied their request.  The letter explained that the determination was based upon the September 18, 2006 meeting and other information that “significantly calls into question your stated beliefs.”  The superintendent noted that petitioners “distinguish between immunizing a healthy body and providing medication to a sick body, because the former is negative, based upon fear and pessimism, while the latter is positive, for the purpose of improving health.”  He also noted that “[y]ou see no reason to subject the body to the immunization procedure because God wants you to stay positive” and that when L.P. received his last shot, “it was difficult for you, and you determined it was not for you and your God.”

The letter also addressed L.P.’s immunization history, specifically why L.P. had received two other immunizations in August 2005 but not the hep-B.  It also questioned why petitioners subjected L.P. to an invasive blood test to test for hepatitis antibodies in September 2006, after requesting the waiver.  Finally, the letter implied that a false entry had been made on a VAR that petitioners supplied to the district in 2005 indicating that L.P. had received his third hep-B.

This appeal ensued.  Petitioners’ request for interim relief was moot because respondent permitted L.P. to remain in school until the end of the 2006-2007 school year.

Petitioners admit that L.P. has not received the third dose of the hep-B immunization.  They deny that they provided a VAR to the school nurse in 2005 when they registered L.P. for kindergarten, deny that they provided any VAR directly to the school and deny that they falsified an entry for L.P.’s third hep-B on any VAR.  They contend that they hold sincere religious beliefs against immunizations and therefore are entitled to an exemption from the immunization requirements.

Respondent contends that petitioners’ objections to immunizations are not based on sincerely held religious beliefs and that its denial of a religious exemption is neither arbitrary nor capricious.

Petitioners submit numerous additional papers and exhibits, including a motion to present new evidence.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).

Furthermore, although petitioners title their submission “new evidence,” it is in essence an addition to the reply, which they admit they are submitting “in order to buttress contentions made in the original petition.”  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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, and all the additional submissions, 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.  I have considered those portions relating to the VARs, but I have not considered those portions relating to respondent’s executive session on petitioners’ waiver request.

PHL §2164(9) provides:

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 L.P. qualifies for a religious exemption requires the careful consideration of two factors: whether petitioners’ purported beliefs are religious and whether the beliefs are genuinely and sincerely held (see Farina v. Bd. of Educ. of the City of New York, et al., 116 F Supp 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 F Supp 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 F Supp 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 J.F. and D.F., 45 Ed Dept Rep 241, Decision No. 15,310; Appeal of L.K., 45 id. 10, Decision No. 15,243; Appeal of C.R. and C.R., 44 id. 39, Decision No. 15,091).  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 may request supporting documents (id.).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

The majority of petitioners’ reply and additional submissions are devoted to disputing the veracity of respondent’s allegation that Mrs. P. falsely entered a date for the third dose of hep-B and the veracity of the school nurse’s recollections.  Respondent’s February 28, 2007 letter referenced the confusion over the VARs as a tertiary reason for denying petitioners’ waiver request.  I need not make a determination on these issues.  In the first place, petitioners admit that L.P. has not received his third hep-B shot.  Moreover, I find that these issues and the related aspersions cast by the parties are peripheral to and obfuscate the central inquiry, which is whether petitioners’ objection to immunization is based upon sincerely held religious beliefs.

Although petitioners attached the Department’s immunization form to their August 16, 2006 waiver request, they did not provide any information that expressed their religious beliefs.  The form requires that the parents’ statement address why they are requesting the religious exemption, a description of the religious principles that guide the objection to immunization, and whether they are opposed to all immunizations, and if not, the religious basis that prohibits particular immunizations.  However, petitioners merely wrote “see attached letter” across the form.  The letter itself, as described above, is devoid of any statements of their religious beliefs.

The only information about petitioners’ religious beliefs is from the excerpts of the September 18, 2006 meeting they chose to include in the petition.  Mr. P. stated: “I believe in God, I believe in following God ... bringing ourselves closer to God.  God is the guiding light in our lives ... Our faith is part of a journey, so it changes over time.”  Mrs. P. added, “[O]ur life is journey [sic] to connect with our God.  By following what we believe to be his word every second minute, [sic] action [sic] of our lives .... My life is guided by my God ... I pray to my God ... I pray to him for guidance, different decisions on what to do with my children.  Everything.  When asked how she determines what to do in a particular situation, Mrs. P. responded, “I listen to my God.”

Mrs. P expressed the following about immunizations:

Vaccinations are based on a dark, foreboding principle ... that if you do not inject your child with this vaccination he will become sick, he may die.  In fact he may cause other children to get sick and die.  This is very fearful, very threatening.  It’s a very sad, non-God like principle.  So since we’ve evolved into two beings that are in the quest of hope and faith and optimism and love and all the good things the world has to offer, if we were to participate actively in the vaccination process, we would be buying into this dark and foreboding, fearful principle, this activity that is based on threats and our children becoming sick.

In distinguishing between vaccinations and medication, Mr. P. replied: “on the one instance, you’re taking a child that is stressed and sick and you’ll do everything in your power to help that child.”  Mrs. P. added, “The hope for wellness - there’s a big difference between that and a fear of illness.”  Mrs. P continued, “God’s word is that man is created in his image, man is perfect, our children are perfect, we are perfect as we stand.  For us to say we’re going to improve upon this, we’re going to put this in them to ward off disease, we’re turning our back on God.  We’re saying, ‘God, we don’t believe what you’ve created is perfect.’”

Mrs. P. also described the internal struggle she experienced every time she had one of her children immunized, and how she evolved to where she is “absolute in that vaccination, this model, this principle, is not for me and my God to share.”  She added, “There was nothing good about doing it, there was nothing uplifting, there was nothing helping my son, there was nothing positive going into him - it was all about the threat of his perfectly healthy body being taken away.  That’s all that was going on.”

Based on the record before me, I cannot conclude that respondent’s decision to deny petitioners’ request for a religious exemption was arbitrary, capricious, or contrary to law.  The record of evidence does not support petitioners’ contention that they hold sincere religious beliefs against immunizations.  My decision is not based on the fact that petitioners previously immunized L.P., gave him a blood test, or would treat him if he were sick.  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 F Supp 506; Appeal of L.K., 45 Ed Dept Rep 10, Decision No. 15,243).  Nor must petitioners oppose medical treatment per se to qualify for a religious exemption (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of C.D. and E.D., 46 Ed Dept Rep ___, Decision No. 15,520).  Rather, I find that petitioners’ general statements -- that they believe that God is perfect and that immunization is negative –- are insufficient to articulate the religious basis or origin of their beliefs (see Appeal of L.P., 46 Ed Dept Rep, Decision No. 15,527; Appeal of S.M. and A.N., 44 id. 418, Decision No. 15,217).  Accordingly, I find that respondent’s determination was rational, reasonable and consistent with law.

THE APPEAL IS DISMISSED.

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