Appeal of N.C., on behalf of her son C.C., from action of the New York City Department of Education regarding immunization.

Decision No. 16,805

(August 3, 2015)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Omar H. Tuffaha, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son, C.C.(“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained. 

By letter dated July, 1, 2013, petitioner requested a religious exemption on behalf of the student, who was attending respondent’s public school.  In her letter, petitioner states that she “used to faithfully vaccinate” the student and that he was up-to-date on all of his vaccinations until she had a “change of heart and mind on the subject ...” of vaccinations in April 2011 after speaking to a friend who told petitioner that the practice of vaccination “goes against the Christian faith.”  The student has not received the required second dose of the MMR vaccine (MMR #2), which the record indicates is the only remaining required vaccination that her son has not received at the time of this appeal.  Petitioner describes wrestling with the concept of vaccinations “quite a bit after [the student] was diagnosed with autism” and states that “after researching on a few Bible and Christian blogs” she determined that her friend “was right about vaccination.”  Petitioner identifies herself as Russian Orthodox and explains that although she emigrated from Russia, she spent her childhood in a country that did not condone religious freedoms yet she developed her strong faith in God from her maternal grandmother who “never abandoned Christian faith” and “introduced me and my sister to God.”  Petitioner states “I remember her reading us passages from the Bible and talking to us about what these passages meant.”

Petitioner states that her most compelling reasons for objection to vaccination are what she deems her “faith issue.”  Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.” 

In support of her position, in petitioner’s letter dated July 1, 2013, petitioner provided a link to the Centers for Disease Control and Prevention (“CDC”) website which appears to provide a list of ingredients in vaccinations, including the MMR #2.  Petitioner states:

...as a person of faith I cannot be knowingly associated with any person or entity who directly or indirectly utilizes products of such hideous acts. The vaccine manufacturers [sic] use of aborted fetal cells in its products and research means that I cannot associate with them or support them financially (by buying their products), for such support would make me complicit to their sin and answerable to God for this violation.

By memorandum dated August 20, 2013, the Health Service Coordinator (“coordinator”) in respondent’s Office of School Health (“OSH”) denied petitioner’s request, stating that “the documentation you submitted is inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The memorandum provided information about how to appeal the determination, which petitioner did by requesting an interview with the Health Liaison (“liaison”) for the Children First Network (“CFN”).

Petitioner met with the liaison on September 3, 2013.  In response to the liaison’s questions about her sincerely held religious beliefs, petitioner largely repeated and referred to the contents of her original letter.

By memorandum dated September 23, 2013, the coordinator denied petitioner’s appeal, stating that the “documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization” and that “[The student] has all of the required vaccines except for MMR #2.” This appeal ensued.  Petitioner’s request for interim relief was granted on November 7, 2013.

Petitioner contends that her objections to immunizations are based on genuine and sincerely held religious beliefs and seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164.  Petitioner also claims that respondent failed to provide her with specific reasons for the denial of her request and that the denial was arbitrary and capricious.  Petitioner further alleges that her constitutional rights have been violated and “contends that the process by which NYC DOE and OSH processed her religious exemption applications is fraudulent and violated her right to due process.”

Respondent contends that petitioner failed to provide sufficient information to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper.  Respondent further asserts that petitioner's objections to immunizations are not based on genuine and sincerely held religious beliefs and that petitioner failed to meet her burden of proof.

I must first address several procedural issues.  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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Therefore, to the extent that petitioner attempts to raise constitutional issues in regard to this appeal, I decline to consider such constitutional claims.

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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

By letter dated December 19, 2013, petitioner submitted an additional memorandum of law in response to respondent’s memorandum of law.  Respondent objects to petitioner’s additional memorandum of law for a number of reasons, including that it contains new allegations and requests for relief.  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  As noted above, petitioner requests that I accept her additional document because it addresses arguments contained in respondent’s memorandum of law.  However, I decline to consider any new issues, claims or evidence made against respondent that were not originally raised in the petition.

Petitioner further submitted additional papers entitled “Motion to Dismiss and Request for Summary Judgment” (“motion”).  Although the Commissioner's regulations do not contemplate motions in appeals brought pursuant to Education Law 310 (Appeal of Alfano, et al., 39 Ed Dept Rep 229, Decision No. 14,224), I have consistently held that where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when respondent has presented no evidence of prejudice (Appeal of Cieslik, et al., 40 Ed Dept Rep 269, Decision No. 14,478; Appeal of Smith, 40 id. 172, Decision No. 14,452).  I find that the purported motion addresses matters raised in the answer and responding affidavits and, thus, falls within the general category of an additional reply.  However, I decline to consider any additional documents which argue new issues, claims and evidence made against respondent that were not originally raised in the petition.

Finally, petitioner provides an affidavit containing her own transcription of the September 3, 2013 interview with respondent’s liaison, claiming that such recording was made intentionally in support of her exemption request because petitioner “did not know what to expect from this meeting.”  I note that §4506 of the Civil Practice Law and Rules provides that any evidence obtained by illegal eavesdropping is inadmissible in any hearing or proceeding before any department, officer, agency or other authority of the State.  Under this section, an aggrieved party in a proceeding must make a motion before a justice of the Supreme Court in order to suppress the contents of an unlawfully recorded conversation.  In this case, respondent made no such motion; however, respondent did raise a specific objection to the recording.  I also note that, although the record contains a report of the liaison’s questions and petitioner’s responses at the September 3, 2013 interview, the record contains no sworn or written statement from the liaison regarding this conversation.  On the other hand, petitioner submits the transcript as part of an affidavit in which she avers that such is the “complete conversation.”  Therefore, while I have considered this information as part of the record in this case, I have weighed it accordingly (cf. Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,491).

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 petitioner qualifies for a religious exemption requires the careful consideration of two factors: whether petitioner’s purported beliefs are religious and, if so, whether such religious 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).  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 or person in charge of a school 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 C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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).

Petitioner asserts that respondent failed to provide sufficient explanation of the reasons for denying her request for a religious exemption.  To support her claim, petitioner relies on guidance from the New York State Education Department (“Department”), which states that a decision to deny a request for a religious exemption must be in writing and “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”  As described above, both the August 20, 2013 and the September 23, 2013 memoranda essentially stated that petitioner failed to demonstrate sincerely held religious beliefs which are contrary to immunization.  The coordinator elaborates in her affidavit that “petitioner failed to provide sufficient documentation or information to substantiate a finding that petitioner held a genuine and sincere religious belief contrary to immunizations.”  Nevertheless, for purposes of this appeal, respondent has articulated a rationale for its determination, to which petitioner has had ample opportunity to respond and has indeed done so. 

Accordingly, I will not sustain the appeal solely on this ground and I need not address the merits of petitioner’s argument on this issue as the appeal must be sustained for other reasons described below.  However, I admonish respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the Department’s guidance.

Respondent disputes that petitioner’s objection to vaccines are based on sincere and genuine religious beliefs.  To support its position, respondent argues that petitioner has failed to show that her beliefs are religious in nature and has failed to put forth evidence that the Russian Orthodox Church in any way expresses opposition to vaccinations.  Respondent also contends that petitioner’s citations to biblical verses and texts do not warrant a finding that her beliefs are religious in nature. I agree with respondent that the record does not support a finding that the Russian Orthodox Church itself has taken the position that the use of vaccines is forbidden or prohibited; however, 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).  Furthermore, while I have generally held that mere citations to statements that are religious in nature, general statements about God, the perfection of the immune system, and citations to biblical verses and passages, without more, are not sufficient to establish genuine and sincere religious beliefs against immunization (see 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).  In the instant appeal, although petitioner cites to biblical texts and religious materials, she further explains and specifies the precise nature and origin of her beliefs as described in her own words in her July 1, 2013 exemption request.  In addition, at the liaison meeting, petitioner explained her beliefs as outlined in her original exemption request.  Her beliefs appear to be based on her own interpretation of the Bible in accordance with her Christian upbringing, are religious in nature, well-articulated, consistent and straightforward, at least with respect to the MMR vaccine at issue in this appeal.   Other than her assertion that her son is autistic, which she does not attempt to link to her objections to immunizations, there is no evidence that petitioner’s position is not religious in nature or based on philosophical, scientific, medical or personal preference.

Respondent further argues that in response to interview questions at the liaison meeting, petitioner acknowledged that she believes in other forms of medical intervention despite the fact that her stated rationale for objecting to vaccination is that man’s fate is in God’s hands and that vaccines “usurp God’s power to decide our fate.”  However, the fact that petitioner would consent to medical treatment of a sick child is not necessarily determinative.  Individuals need not oppose medical treatment per se to qualify for a religious exemption, but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 F Supp 506).  Similarly, the fact that petitioner’s child was immunized in the past is not necessarily dispositive in determining whether the individual has genuine and sincere religious beliefs (Lewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250) although it does have a bearing on the assessment of the sincerity of the alleged religious beliefs (see, Caviezel v. Great Neck Public Schools et al. 701 F Supp 2d 414).

To support her religious exemption request, petitioner contends that “the scriptures consider our blood sacred and specifically warn us against mixing it with foreign blood or any other impure matters.”  Petitioner states that she looked at the vaccine ingredients on the CDC website and “learned that vaccines contain cells of animal origin” and that is one of the reasons she objects to immunizations; however, these statements do not, in and of themselves, establish a sincerely held religious objection to immunization (see e.g. Appeal of O.M and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of L.S., 50 id., Decision No. 16,180).

Petitioner, however, also objects to immunizations based on her opposition to abortion, which is religious in nature and is based upon her interpretation of Bible teachings and doctrines as well as her upbringing in the Russian Orthodox religion (see Appeal of D.H., 52 Ed Dept Rep, Decision No. 16,425; Appeal of B.O-G., 51 id., Decision No. 16,294).  Petitioner contends that, even if a specific vaccine does not contain aborted fetal cells, she is still opposed to it because all vaccines have been tainted by vaccine manufacturers who use aborted fetal cells in their products and research in related fields.  She also alleges, however, that the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines.

Although, as respondent notes, petitioner’s own interpretation of official Russian Orthodox Church teachings and doctrines may differ from those of the Russian Orthodox Church, the record indicates that her objection to certain immunizations is based on her opposition to abortion, which is religious in nature and genuine and sincerely held.  The record also indicates that the Church strongly opposes abortion and that petitioner’s opposition to all vaccinations is based on her own genuine and sincere religious beliefs about abortion.  As noted above, the determination of whether petitioner qualifies for a religious exemption requires the careful consideration of two factors:  whether petitioner’s purported beliefs are religious and, if so, whether such religious 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).  

In support of her position, petitioner provided a link to the CDC website which contains a list of ingredients in vaccinations, including the MMR vaccine, and indicates that the MMR vaccine uses human diploid cell cultures that were first isolated from an aborted fetus.  In addition, as part of her petition, petitioner submitted several articles and samples of current manufacturers’ product inserts, including one from the manufacturer of the MMR vaccine, indicating use of human diploid aborted fetal cell lines with what appear to be website reference links to the same.  While it is unclear whether petitioner provided these documents to respondent’s coordinator or liaison prior to this appeal, petitioner’s July 1, 2013 letter contained information regarding the link between the vaccines to which petitioner objects and aborted fetal tissue.  In this appeal, respondent has not submitted evidence to rebut the linkage between the MMR vaccine and aborted fetal tissue.  Thus, I find that the record in this proceeding contains evidence of a possible linkage between the MMR vaccine and the use of aborted fetal tissue, to which petitioner objects on religious grounds (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.  Petitioner’s assertion that she objects to all immunizations regardless of their use of human fetal tissue does undercut her reliance on a religious objection based on a linkage to the use of aborted fetal tissue (see e.g. Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250).  Based on the totality of the record in this appeal, however, I do not find that dispositive, as petitioner has produced unrebutted evidence of a linkage to the only vaccine at issue (cf. Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; Appeal of Y.R. and C.R., 50 id., Decision No. 16,165; Appeal of C.S., 50 id., Decision No. 16,163).  Petitioner articulated and demonstrates a religious belief, and the record does not indicate that petitioner's position is based on philosophical, scientific, medical or personal preference.  Furthermore, petitioner produced information relative to specific ingredients in vaccinations, including the MMR #2, in her July 1, 2013 exemption request which appears to provide the linkage between vaccines and aborted fetal tissue.  I find that respondent fails to adequately explain its rejection of otherwise convincing evidence.  I cannot, therefore, defer to respondent’s assessment of petitioner’s credibility to the extent such an assessment was made (Appeal of C.R. and C.R., 44 Ed Dept Rep 39, Decision No. 15,091).

THE APPEAL IS SUSTAINED. 

IT IS ORDERED that respondent grant petitioner’s son a religious exemption from the immunization requirement specified on this decision pursuant to Public Health Law §2164.

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