Appeals of K.M., on behalf of her daughter A.M., from action of the Pixie Nursery School regarding immunization.

Decision No. 17,344

(March 13, 2018)

ELIA, Commissioner.--In two related proceedings using the same caption (“Appeal I” and “Appeal II”), petitioner challenges the determination of the Pixie Nursery School (“respondent” or “Pixie”), a nonpublic school,[1] that her daughter, A.M. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  Because these proceedings present similar issues of fact and law, they are consolidated for decision.  Appeal I must be dismissed and Appeal II must be sustained in part.

In February 2016, petitioner registered the student at Pixie for the 2016-2017 school year, commencing in September 2016.  On March 21, 2016, petitioner submitted tuition payment and a physician’s report indicating that the student’s immunizations are incomplete because of a “religious exemption.”  Petitioner alleges that respondent’s director, Sara Vasilakos (“director”) contacted petitioner on or about March 30, 2016, and informed petitioner that the school does not accept religious exemption requests.  In April 2016, petitioner re-submitted an enrollment application and a Request for Religious Exemption to Immunization Form dated April 20, 2016, with a letter requesting a religious exemption from the immunization requirements of PHL §2164 on behalf of the student.  In the letter, petitioner described her Catholic faith and upbringing and explained how her familial relationships, Christian tradition and experiences played an important role in her life and religious beliefs. She also elaborated on how her faith guided many aspects of her life.  

Petitioner further explained:

Our bodies are a temple, not of our own but a sanctuary for Him. I interpret his word and implement the word by maintaining a lifestyle that is healthy and clean. [The student] was born a healthy girl with a strong and healthy immune system created by God to defend her body against disease and illness.  I rely on Gods [sic] healing power and the power of prayer ... It would be a contradiction of my God’s word to take my daughter to a physician and purposely introduce disease and unclean chemicals into her body knowing that she has a strong, healthy, and intact immune system. 

Petitioner also stated that “[i]mmunization corrupts the purity of the sacred and precious blood.  It tricks the body into unnatural immune responses, which was created by man and not by God.”  She also cited to various Biblical verses and texts and explained her interpretation of those Biblical verses and texts.

By letter dated May 6, 2016 respondent denied petitioner’s request, stating:

While we respect your right to claim a religious exemption for not having your child vaccinated, it is the policy of the school not to accept any child who has not been immunized.  This is for the child’s well-being as well as that of the current students and staff.

Appeal I ensued.  

Subsequent to the initiation of Appeal I, by letter dated June 28, 2016, respondent further notified petitioner that her request had been reviewed and was denied because her claims were “based on moral, philosophical and personal belief[s].”  Appeal II ensued.  Petitioner’s request for interim relief was granted on August 30, 2016.

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization. Petitioner maintains that respondent’s denial of her request was arbitrary and capricious and is in violation of the New York State Education Department’s (“Department”) guidance because respondent has a “blanket policy of denying all religious exemptions ...” and “I was denied procedural due process as the exemption application was not even accepted and/or considered, let alone judged to be insincere and disingenuous [emphasis omitted].”  Petitioner also contends that respondent’s denial of her request was arbitrary and capricious because it failed to sufficiently evaluate the sincerity or religious nature of her beliefs.  Petitioner seeks a religious exemption for the student pursuant to PHL §2164.

Respondent appears to argue that it is not subject to the requirements of PHL 2164.  In its letter dated June 28, 2016, issued in response to Appeal I, respondent determined that petitioner’s objections to immunization are not based on sincerely held religious beliefs, but rather are based on moral, philosophical and personal objections to immunizations.             

Initially, I must address several procedural issues.  Appeal I 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). In Appeal I, petitioner challenged respondent’s refusal to consider her request for a religious exemption to immunization.  Respondent subsequently did consider the request and respondent’s June 28, 2016 determination to deny petitioner’s request for a religious exemption based upon respondent’s evaluation of the sincerity of petitioner’s religious beliefs, therefore, renders Appeal I academic.

With respect to Appeal II, petitioner’s affidavit of service indicates that the petition was personally served on Pixie’s director on August 12, 2016.  Thereafter, the secretary of respondent’s board of trustees submitted an unverified letter, dated August 22, 2016, identified as respondent’s “response in opposition to [the petition] dated August 11, 2016.”  However, the correspondence did not constitute an answer or other pleading, nor was it verified in accordance with §275.6 of the Commissioner’s regulations.  No further response to the petition was submitted.  By letter dated October 13, 2016, my Office of Counsel informed respondent that §§275.9 and 275.13 of the Commissioner’s regulations require that “each respondent upon whom a copy of a petition has been served shall serve and file an answer thereto.”  My Office of Counsel further informed respondent that no answer had been filed within the time allotted.  Because respondent has not submitted a verified answer to the petition pursuant to §§275.5 and 275.12 of the Commissioner’s regulations, the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR §275.11; see e.g. Appeal of Adamitis, 38 Ed Dept Rep 765, Decision No. 14,137).  To the extent that respondent relies on its unsworn correspondence, dated August 22, 2016, such unsworn correspondence will be considered solely for any argument contained herein and will be weighted accordingly.

Next, 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 Appeal II, I decline to consider such constitutional claims.

  Finally, to the extent that petitioner seeks damages and fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Turning to the merits, PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, PHL §2164(9) provides as follows:

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 for her child 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 FSupp2d 503; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  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 FSupp 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 FSupp2d 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 K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 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 or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that they object to his or her child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of his or her 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).

In Appeal II, petitioner argues that respondent rendered its June 28, 2016 determination that she did not have sincerely-held religious beliefs without “further examination” and “constructively denied [her] an in-person meeting.”  In its June 28, 2016 letter, respondent states that it “read and researched [petitioner’s] declaration” and sets forth the specific reasons for its denial of petitioner’s religious exemption request. In that letter, respondent also notes that petitioner’s statement “did not indicate what stopped her from immunizing [the student after February 6, 2014]” and that petitioner failed to “provide a statement of which ingredients are contrary to her belief.”  It does not appear from the record, however, that prior to making a determination, respondent questioned or asked petitioner to explain these aspects of her statement.

As discussed above, school officials 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).  Should any need for elaboration regarding such statement have arisen, respondent should have requested an explanation or supporting documentation (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of C.O., 52 id., Decision No. 16,421).  Nevertheless, while the record indicates that, after reviewing petitioner’s exemption request, questions remained about the existence of a sincerely-held religious belief, respondent neither requested a meeting nor requested supporting documents from petitioner as required by Department of Health regulations (see 10 NYCRR §66-1.3[d]; Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of R.R., 54 id., Decision No. 16,663).  As a result, respondent is urged to review its communications, processes, and procedures to ensure compliance with applicable laws, regulations, and guidance in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of R.R., 54 id., Decision No. 16,663).

In any case, although the record indicates that respondent did not specifically question petitioner regarding the issues raised above prior to denying her exemption request, respondent did raise such issues in its June 28, 2016 letter and, as a result, while petitioner did not have the opportunity to respond to these particular concerns prior to respondent’s denial of her exemption request, petitioner has now had sufficient opportunity to address them (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920).

I find no merit in respondent’s argument that, as a private school, it is exempt from the requirements of PHL §2164 or that it has the right to deny petitioner’s religious exemption request based on its concerns over the health and safety of its pupils and staff.  The religious exemption set forth in PHL §2164(9) applies to private and parochial schools and is available to students who attend such schools (Bowden, et al. v. Iona Grammar School, et al., 284 AD2d 357; Appeal of L.S., 48 Ed Dept Rep 227, Decision No. 15,845; Appeal of L.S., 47 id. 476, Decision No. 15,758).  

Furthermore, PHL §2164(1)(a) provides in pertinent part:

[T]he term ‘school’ means and includes any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school.

Also, with respect to the age of the student or the voluntariness of her enrollment in respondent’s school, PHL §2164[1][b] provides in pertinent part, “the term ‘child’ shall mean and include any person between the ages of two months and eighteen years.”  Accordingly, the exemption provisions apply to the student (Appeal of D.W. and N.W., 50 Ed Dept Rep, Decision No. 16,144).    

I find that petitioner has sufficiently demonstrated a genuine and sincere religious belief within the meaning of PHL §2164. 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 insufficient 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); here, petitioner relies on Biblical verses and passages to explain the precise nature and origin of her beliefs as described in her April 2016 exemption request.  Her beliefs appear to be based on her own interpretation of Biblical texts in accordance with her Catholic upbringing and life experiences, are religious in nature, consistent, and straightforward.  Further, there is no evidence in the record before me that petitioner’s position is not religious in nature or that it is based on moral, philosophical, scientific, medical or personal preferences.  Aside from its own conclusory statements, respondent fails to identify any specific examples to support its characterization of petitioner’s beliefs.  Nor is there any indication on the record before me that respondent requested any supporting documents or other information from petitioner to further explain or clarify her religious beliefs.

In support of her exemption request, petitioner sufficiently explains and elaborates why her beliefs keep her from immunizing the student.  Petitioner states:

[A]fter renewing my relationship with GOD, I was washed clean of sin.  He is all knowing, and as such I can walk in faith that he will provide protection and guidance for his children.

Petitioner further acknowledges that she may seek medical intervention “should my child(ren) become unhealthy and their body is in crisis, I will seek advice from a physician as well as pray to my God” and “[t]here is a significant difference between a body in crisis needing help and a body that is healthy accepting a procedure.”  To support this position, petitioner refers to the following Biblical citation: “‘But when Jesus heard that, he said unto them, they that be whole need not a physician, but they that are sick.’ (Matthew 9:12 KJV).”  Further, I note that 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 FSupp 506). 

In support of its determination to deny petitioner’s exemption request, respondent stated that petitioner’s “statement of request for religious exemption of immunizations had no direct or supportive foundation in either the Old or New Testament of the Christian Bible.”  Respondent further stated:

A review ... of [petitioner’s] religious declaration ... was deemed as non-supportive of her religious request for immunization exemption.  [Respondent’s] Board and Minister concluded that [petitioner’s] beliefs could not be substantiated in the Christian Bible [and petitioner’s] request ... is not supported by historical positions on vaccinations by either the Catholic Church or any Protestant denomination.

I agree with respondent that the record does not support a finding that the Catholic Church or Protestant religion has taken the position that the use of vaccines is forbidden or prohibited; however, as previously stated, 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 FSupp 81; Appeal of B.S., 56 Ed Dept Rep, Decision No. 17,058; Appeal of D.W. and N.W., id., Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845).  Accordingly, it is not necessary for petitioner’s religious objections to be in accordance with the Christian Bible or Catholic or Protestant tradition or that of any other organized religion, provided that they are religious in nature. 

The record indicates that another factor considered by respondent in denying petitioner’s exemption request was the student’s immunization history.  However, 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 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Indeed, petitioner explained:

[W]hen I was a new mom, I vaccinated my daughter and then stopped February 6, 2014. I thought I was doing the ‘right’ thing and never looked at the process from a religious perspective.  I never looked at it that I was not trusting God.  I trusted the pediatrician and did not look at it like I was replacing doctor’s orders as the sovereign of God.  I have put the past behind me, and I view this as a lesson learned, through life experience. I had no knowledge of the foreign ingredients in vaccinations.... It is through God’s word and my personal and always growing understanding of his sacred text, while reading his word to my daughter, my viewpoint changed.

Accordingly, the student’s prior immunization history and the fact that petitioner changed her mind concerning vaccination does not evince a lack of sincerity or diminish the sincerity of petitioner’s religious beliefs. 

Based on the record before me, I find that the weight of the evidence supports petitioner’s contention that her opposition to immunization stems from sincerely-held religious beliefs.  Respondent’s argument that petitioner’s objection to immunization is not supported by the Christian Bible or based on Catholic or Protestant law or tradition is of no merit.  Therefore, on this record, I disagree with respondent that petitioner’s exemption request fails to establish petitioners claimed religious opposition to vaccinations.  Petitioner explains and specifies the precise nature and origin of her beliefs in her own words.  Her beliefs appear to be religious in nature, are well-articulated and, contrary to respondent’s conclusory assertion, there is no evidence that petitioner’s position is not religious in nature or based on moral, philosophical, scientific, medical or personal preference.  Accordingly, I conclude that petitioner has met her burden and that the record, as a whole, shows that petitioner objects to immunization based on sincerely-held religious beliefs.

APPEAL I IS DISMISSED AND APPEAL II IS SUSTAINED TO THE EXTENT INDICATED. 

IT IS ORDERED that respondent grant petitioner’s daughter a religious exemption from the immunization requirements pursuant to Public Health Law §2164(9).

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