Appeal of M.C. and A.S.C., on behalf of their daughter C.C., from action of the Board of Education of the Great Neck Union Free School District regarding immunization.

Decision No. 16,324

(December 29, 2011)

Patricia Finn, Esq., attorney for petitioners

Frazer & Feldman, LLP, attorneys for respondent, Joseph Carbonaro, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their daughter, C.C., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In November 2009,[1] when C.C. was three years old, petitioners submitted a letter to respondent, prepared by their attorney, seeking a religious exemption so that she could attend Parkville Early Childhood Center beginning in September 2010.  By letter dated November 16, 2009, respondent denied the request stating that “the arguments proposed seem more grounded in philosophy i.e. ‘honor, love and respect’ than in any formal religious belief.”  Thereafter, petitioners commenced a lawsuit in the Federal District Court for the Eastern District of New York alleging that the denial of the exemption violated their First Amendment right to free exercise of religion.[2]

On March 15, 2010, the court held a hearing on petitioners’ motion for a preliminary injunction to determine “whether the parents of C.C. ‘hold genuine and sincere religious beliefs’, which form the basis of their objection to their daughter’s immunization by way of vaccination” (Caviezel v. Great Neck Public Schools, et al., 701 F Supp 2d 414 at 416 [EDNY 2010], appeal pending, 2d Cir., Index No. 11-3431, [“Caviezel I”]).  By decision dated April 5, 2010, the court denied petitioners’ motion.  After a thorough analysis of petitioners’ hearing testimony, the court found that petitioners did not show that they had a genuine and sincere religious belief which prohibited vaccinations (Caviezel I at 429).  The court specifically referenced petitioner M.C.’s hearing statements that vaccines may not be safe and that she read an article regarding the harmful effects of vaccinations, which may include autism (Caviezel I at 430).  The court determined that these were non-religious explanations for petitioners’ refusal to have C.C. immunized which stemmed from a fear that the vaccinations are not safe rather than from a religious belief (Caviezel I at 430).  The court also found that petitioner M.C.’s “reluctance to have her daughter vaccinated does not arise from a religious belief, but from a personal, moral or cultural feeling against vaccination for her young child” (Caviezel I at 430).

By letter dated April 8, 2010, petitioners and their attorney submitted a second request to respondent seeking a religious exemption from immunizations for C.C.  Petitioners’ letter explained their beliefs, in part, as follows:

• God is in everything, every person, every being, every plant in the ocean and in nature.
• The universe is a manifestation of God.
• God created everything in balance.
• The universe is in balance without interference.
• We believe that God is in everything and everyone and that everything and everyone should be treated with dignity, love, honor and respect.  Our bodies are manifestations of God, their design is divine, they work in perfect balance to keep us healthy and strong.
• We have the power to heal ourselves through divine creation and this is why we believe that immunizations are not necessary.

By letter dated May 25, 2010 from its counsel, respondent denied the request, stating that “[the court’s] reasoning and conclusions are as applicable to the grounds set forth in your recent letter as they were to [the court’s April 5, 2010] decision.”  The letter also stated that the request was denied “because it is based on secular, philosophical objections to vaccination that fall outside the statutory exemption provided by Public Health Law Section 2164(9).”  Further, respondent’s letter stated that there were serious doubts as to whether petitioners’ beliefs were sincere and genuine.

Claiming that respondent’s superintendent encouraged them to submit a revised exemption request with quotations from religious scriptures to support their beliefs, on June 23, 2010, petitioners and their attorney submitted a third request for a religious exemption from immunizations for C.C.  This letter is very similar to the April 8, 2010 letter but includes multiple references to religious texts.  By letter dated July 15, 2010 from its counsel, respondent denied petitioners’ third request stating that the request was “considered fully” and that “the District understand[s] that your clients are disappointed with the Court’s decision on the preliminary injunction and with the District’s denial of their requests.  However, nothing has been presented which provides any basis upon which to alter those prior determinations.”  This appeal ensued.  Petitioners’ request for interim relief was denied on September 2, 2010.

Petitioners maintain that they have a sincere religious belief against immunizing C.C. and that respondent’s denial of their exemption requests was arbitrary and capricious.  Petitioners also assert that respondent falsely promised that it would accept petitioners’ third request if they provided quotations to religious tenets.

Respondent asserts that the April 8 and June 23, 2010 letters submitted by petitioners are requests for reconsideration of their original November 2009 request.  Respondent maintains that, as a result, the appeal is untimely and it is barred because it seeks the identical relief petitioners sought in their federal action.  Respondent also maintains that petitioners’ objections to immunization are not based on genuinely and sincerely held religious beliefs, but rather are “thinly veiled expressions of secular opposition to immunization founded in medical opinion, science and philosophy.”  Finally, respondent argues that, contrary to petitioners’ allegations, its superintendent did not encourage them to submit additional paperwork with religious quotations and that, in any event, the doctrine of equitable estoppel does not apply to a school district.

Although the petition is not entirely clear, to the extent petitioners attempt to challenge respondent’s denial of their April 2010 request, such claim must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  As noted above, respondent denied petitioner’s April 2010 request by letter dated May 25, 2010.  However, petitioners did not commence the instant appeal until August 2010, nearly three months later.  Accordingly, any claims raised with respect to respondent’s denial of the April 2010 request must be dismissed as untimely.

Respondent argues that petitioners’ June 2010 letter is a request for reconsideration of their November 2009 request and that the appeal is therefore untimely and barred because the issues raised and relief requested are identical to those raised in the federal court proceeding.[3]  I disagree. 

First, I note that respondent’s July 15, 2010 denial letter informed petitioners of their right to appeal such determination to the Commissioner of Education pursuant to Education Law §310.  Moreover, the November 2009 request, which was the subject of petitioners’ federal lawsuit, was actually dated and prepared in October of 2007[4] and it is quite possible that the expression of petitioners’ beliefs might have grown and changed since that time, causing pertinent differences between the October 2007 and the June 2010 requests (seeAppeal of O.M. and R.M., 51 Ed Dept Rep, Decision No. 16,267; Appeal of I.M. and G.M., 50 id., Decision No. 16,164).  Indeed, the June 2010 letter makes regular reference to God while the original November 2009 request, which comprised only three paragraphs describing petitioners’ religious beliefs, makes no mention of God but rather refers to “our Creator” and “Earth.”  Also, while some of the expressions of belief are the same in all three of petitioners’ letters, their June 2010 letter relies upon a newly stated belief that “God created everything in balance”, that “our bodies are manifestations of God, their design is divine” and that “[I]njecting diseases into the body wouldn’t be treating our bodies with love and respect and might throw the God created miracle that is our body off our divine balance.”  The June 23, 2010 letter also references multiple religious tenets to support these propositions.  Although the differences in the letters may not constitute a change in petitioners’ beliefs since November 2009, I find that the expression of such beliefs in the June 2010 request varies enough that it does not constitute a mere request for reconsideration of the November 2009 request.  I remind respondent of its obligation to fully consider each request for an immunization exemption (seeAppeal of O.M. and R.M., 51 Ed Dept Rep, Decision No. 16,267; Appeal of I.M. and G.M., 50 id., Decision No. 16,164).  Therefore, with respect to petitioners’ June 2010 request, I decline to dismiss the appeal as untimely.

Moreover, I decline to dismiss this appeal in its entirety based upon the prior decisions in federal court.  Under the doctrines of resjudicata and collateral estoppel, claims or issues raised in an appeal pursuant to Education Law §310 which are identical to claims or issues that have been adjudicated and dismissed by a court of competent jurisdiction will not lie (seee.g.Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044; Appeal of Morris, et al., 36 id. 405, Decision No. 13,761).

As explained above, petitioners’ initial request for a religious exemption from immunization requirements was made to respondent in November 2009.  After respondent denied the request, petitioners proceeded to Federal District Court which held a hearing on petitioners’ request for a preliminary injunction.  In April 2010, the court denied petitioners’ request, finding that petitioners’ did not show that they had a genuine and sincere religious belief which prohibited vaccinations (Caviezel I, 701 F Supp 2d 414 at 429 [EDNY 2010], appeal pending, 2d Cir., Index No. 11-3431).  The court subsequently dismissed all of petitioners’ federal constitutional claims in Caviezel II (739 F Supp 2d 273 at 278 [EDNY 2010], appeal pending 2d Cir., Index No. 11-3431).  Finally, the court granted the school district’s request for summary judgment on the remaining state law claim for which it elected to exercise pendent jurisdiction (Caviezel III, 2011 WL 3022247 [EDNY 2011], appeal pending, 2d Cir., Index No. 11-3431).  In Caviezel III, the court indicated that summary judgment was granted, in large part, based on petitioners’ failure to submit additional evidence in response to the district’s summary judgment motion and the testimony given at the preliminary injunction hearing (Caviezel III at 3).  The preliminary injunction hearing, however, occurred in March 2010, several months before petitioners submitted the June 2010 letter at issue in this appeal.

Thus, while petitioners make the same general claim in this appeal as they do in the federal court case (that they hold sincere religious beliefs that should exempt their daughter from immunization requirements), to the extent, if any, those beliefs have changed during the time between petitioner’s initial 2009 letter, which was actually written in 2007, and their June 2010 letter, such changes in belief have not yet been the subject of any court action.  Therefore, I cannot find that petitioners’ beliefs, as restated and potentially revised in their June 2010 letter, have been conclusively adjudicated and I decline to dismiss the petition on the basis of resjudicata or collateral estoppel.

I also note that petitioners, while bringing this appeal on behalf of their daughter C.C., requested interim relief for all four of their children, specifically seeking that they be allowed to register and attend respondent’s schools.  The petition is silent as to the other children except to state that petitioners received two letters regarding the possible exclusion of their oldest son, N.C., if his immunizations are not updated.  Petitioners’ reply then states that N.C. was placed in private school.  Petitioners have not submitted evidence that they requested an exemption for N.C. or any of their other children and that such request(s) were denied.  Thus, with respect to their other children, petitioners are in essence requesting an advisory opinion.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

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) 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 petitioners qualify for a religious exemption requires the careful consideration of two factors:  whether their purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (seeFarina 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 UFSD, 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 O.M. and R.M., 51 Ed Dept Rep, Decision No. 16,267; Appeal of B.R. and M.R., 50 id., Decision No. 16,250; Appeal of C.S., 49 id. 106, Decision No. 15,971).  Parents/guardians who seek a religious exemption must submit a written and signed statement to the school district stating that the parents/guardians object 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 (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 petitioner’s statements and may consider 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 O.M. and R.M., 51 Ed Dept Rep, Decision No. 16,267; Appeal of B.R. and M.R., 50 id., Decision No. 16,250; Appeal of C.S., 49 id. 106, Decision No. 15,971).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners assert that on or about May 25, 2010 the superintendent “encouraged [them] to submit additional paperwork that quoted religious scriptures or tenets in support of their application.”  In reliance on such statement, petitioners submitted their June 23, 2010 letter which revised their April 8, 2010 letter by adding citations to religious tenets with the belief that respondent would approve it.  However, in an affidavit, the superintendent avers that when questioned by petitioner M.C. at a school event in June 2010, he told her that respondent had, on occasion, granted immunization exemption requests and that the difference between those requests and petitioners’ was that they were ”founded strictly on religion and were frequently informed by religious scriptures.”  According to the superintendent’s affidavit, he did not encourage petitioners to file another request with quotes from religious texts.  Petitioners do not submit an affidavit explaining their version of the encounter with the superintendent.  Whether or not the superintendent made statements to petitioners that they relied upon, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Ballenger, 50 Ed Dept Rep, Decision No. 16,114).

In any case, even with the addition of religious citations, petitioners have not established a sincerely held religious objection to immunizations.  Although their June 23, 2010 letter includes statements that are religious in nature, their general statements about God, the belief that humans are divine beings, and that immunizations are not necessary because they might throw the body off of its divine path, do not, in and of themselves, establish a sincerely held religious objection to immunization (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).

Additionally, the record contains a copy of the court’s decision and a copy of the transcript from the proceedings reflecting petitioners’ testimony in the March 15, 2010 preliminary injunction hearing. Petitioners’ testimony at the hearing was thorough and they were represented by counsel.  Indeed, many of the statements made at the hearing vary little from those submitted in petitioners’ subsequent exemption requests and petitioners do not allege that their beliefs have changed since that time.  For instance, petitioner M.C. testified on March 15, 2010 that “I believe it’s [vaccination] not necessary.  I believe that the human body, the way it’s designed, is just perfect.  It’s a miracle in itself.” (Caviezel I, 701 F Supp 2d 414 at 420 [EDNY 2010] appeal pending, 2d Cir., Index No. 11-3431, citing page 22 of the transcript of the March 15, 2010 preliminary injunction hearing).  Similarly, petitioners made the following statement in their June 23, 2010 letter:

Our bodies are manifestations of God, their design is divine, they work in perfect balance to keep us healthy and strong. . . . Injecting diseases into the body wouldn’t be treating our bodies with love and respect and might throw the God created miracle that is our body off its divine balance.

Therefore, while respondent was obligated to fully consider the June 23, 2010 request for an immunization exemption, it is evident that the nature of petitioners’ beliefs did not change between March 15 and June 23, 2010.

During the preliminary injunction proceedings in Federal District Court, the court concluded that while petitioners made statements that were religious in nature, petitioners’ true opposition to immunization stems from their fear for C.C.’s health and safety rather than a sincerely held religious belief (Caviezel I, 701 F Supp 2d 414 at 429 [EDNY 2010] appeal pending, 2d Cir., Index No. 11-3431).  Petitioners do not address the court’s finding in their June 23, 2010 letter to respondent, nor have they established that their religious beliefs have changed in any material way from the beliefs determined in Caviezel I and Caviezel III not to constitute a valid religious objection to immunization.  While there is no doubt that petitioners sincerely object to immunizations, the record before me indicates that their opposition arises from a personal, moral or cultural feeling rather than a religious belief (Caviezel I at 430; seealsoCaviezel III).

On the record before me, I find that petitioners have failed to carry their burden of demonstrating that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal must, therefore, be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE.