Appeal of E.H, on behalf of her daughter A.F., from action of the New York City Department of Education regarding immunization.

Decision No. 17,532

(November 6, 2018)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Copatrick Thomas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE” or “respondent”) that her daughter, A.F. (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2017-2018 school year, the student was enrolled in respondent’s district.  By letter dated November 20, 2017, petitioner submitted a request for a religious exemption from immunization on behalf of the student.  Petitioner stated that she and the student were “born again Christians and we deeply and sincerely believe our daughter’s body is a temple of God.”  Petitioner further asserted that “vaccines contain cells, cellular debris, protein and DNA from aborted babies (innocent babies [sic] blood).”  In support of her religious exemption request, petitioner cited various Biblical verses and texts.

By memorandum dated January 17, 2018, respondent’s health service coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation she submitted was:

inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  Specifically, while you cited passages and scriptures and [sic] you have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.  [The student] has all of the required vaccines except DTaP#5, MMR#2 and varicella#2.  You have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.

The memorandum also informed petitioner of respondent’s appeal process.

Petitioner appealed the determination and met with respondent’s health director (“director”) on February 8, 2018. The record indicates that during the meeting, petitioner was asked questions about her opposition to immunizations and the religious basis for her beliefs.  In response, petitioner stated that “these fetal blood stained vaccines are sins to allow them to be injected into [the] body” and “it is against God to allow such substances stained with such blood to be allowed in [the] body.” Petitioner also acknowledged that her children had received vaccinations in the past; however, she stated that she allowed her children to be vaccinated prior to becoming a born again Christian “over a year ago.”  Petitioner further stated: “I don’t have anything against medical interventions that don’t have blood (especially fetal human blood)”; however, she stated that she was opposed to blood transfusions “because this is allowing this foreign matter, sinful matter into their bodies.”

Petitioner also submitted a letter to respondent dated February 8, 2018 which largely repeated the information contained in her November 20, 2017 exemption request and the information she provided during her appeal interview with respondent’s director; however, petitioner further elaborated that her children were previously vaccinated “before we found out about horrible human fetal cells from aborted babies being used in vaccines today.”[1]   

By memorandum dated February 13, 2018, respondent denied petitioner’s appeal.  The memorandum also informed petitioner that she could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that during the appeal process, the student would not be permitted to remain in school.  This appeal ensued. Petitioner’s request for interim relief was denied on March 19, 2018.

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 of PHL §2164.

Respondent contends that its determination was rational, not arbitrary or capricious, and in all respects proper.  Respondent specifically argues that petitioner’s prior vaccination of the student is inconsistent with her contention that she is a lifelong Christian.  Respondent further contends that petitioner has not met her burden of proving that the student’s required vaccines contain the ingredients to which she objects on appeal.  Respondent also asserts that petitioner’s statements derive from secular or health-based, instead of religious, concerns.

Proof of immunization against certain diseases is generally required for a child to be admitted to school (PHL §2164[6]).  However, evidence of immunization is not required if a child’s parent or guardian holds genuine and sincere religious beliefs contrary to the mandated immunizations (PHL §2164[9]).

The determination of whether a petitioner qualifies for a religious exemption requires careful consideration of two factors: whether his or her purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 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 District, 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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of T.R., 57 id., Decision No. 17,329; Appeal of H.A., 57 id., Decision No. 17,215).  A parent or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent or guardian objects to the child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of the 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 the parent or guardian’s statements and may consider the parent or guardian’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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of D.G. and B.L., 57 id., Decision No. 17,345; Appeal of T.R., 57 id., Decision No. 17,329).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Respondent initially asserts that the student’s history of vaccination supports a finding that petitioner’s claimed opposition to vaccination is not genuine or sincerely-held.  According to the record, respondent’s coordinator considered the student’s prior immunization history as one factor in denying petitioner’s religious exemption request.  In her petition, petitioner explains that:

I cannot further allow my child to be contaminated with such unpurely [sic] substances.  [The student] has had prior vaccines and this was before I was aware of such blood contaminated vaccines.  Before I as a true believer in my God [,] I reconciled with my God and asked forgiveness for unknowingly allowing prior contamination of her body and blood.

Courts have consistently held that the fact that petitioner’s children were 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 FSupp 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 FSupp2d 414, aff’d 500 Fed Appx 16, cert. denied, 133 SCt 1997).  On this record, I find that petitioner provided sufficient information to establish the basis for her change of heart regarding the student’s immunizations.

However, upon careful review of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely-held religious beliefs.  Petitioner’s objections to vaccination appear to be grounded in her concerns regarding the purity of the blood and her opposition to abortion and, by extension, fetal tissue obtained from abortions.  In support of her position, petitioner primarily cites and quotes various Biblical verses and texts.  I find that petitioner’s general statements and citations to Biblical verses without further elaboration are insufficient to establish the religious basis or origin of her beliefs in this regard (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,954; Appeal of K.E., 48 id. 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Moreover, aside from these citations to Biblical texts and religious materials, petitioner has failed to further elaborate and explain the precise nature and origin of her beliefs in her own words (cf. Appeal of M.B. and W.D., 57 Ed Dept Rep, Decision No. 17,425; Appeal of N.I., 57 id., Decision No. 17,176).

Although petitioner’s submissions include statements that are religious in nature, her statements about God and defiling the blood do not, in and of themselves, establish a sincerely-held religious objection to immunization (see Appeal of C.S., 50 Ed Dept Rep, Decision No. 16,163; Appeal of S.B., 48 id. 332, Decision No. 15,875; Appeal of R.P. and R.P., 47 id. 124, Decision No. 15,648).  There is no doubt on this record that petitioner sincerely objects to immunizations, but the crux of the issue is whether the reason for her objections is religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 FSupp2d 414 [EDNY 2010]).

I note that, in her petition, petitioner asserts that: “I’m pro-life, pro-God and deeply and sincerely against abortions and therefore these vaccines because they contain human serum albumin, as well as aborted and normal fetal cell lines.” Petitioner further states that “vaccines ... contain human serum albumin, as well as aborted and normal fetal cell lines” and that “WI-38 cells are used to produce several vaccines, including Adenovirus, MMR and Varicella zoster.”  As proof, petitioner submits a document entitled “Vaccine Excipient & Media Summary” which, according to the document, was last updated in February 2012. This document indicates, in relevant part, that MMR-II contains “recombinant human albumin” and that varicella contains “human diploid cell cultures.”[2]

In response, respondent submits an affidavit from Denise Benkel, M.D., citywide immunization registry medical specialist in the New York City Department of Health and Mental Hygiene’s Bureau of Immunization which responds to petitioner’s contentions and states, among other things, that “cell lines originally derived from human embryo cells are used to make a few vaccines[;] specifically, for the school-required vaccines: varicella, rubella, and one presentation of polio vaccine.”  Dr. Benkel explains that “these cells are not actual ingredients in vaccines, but are used as a growth medium for the viruses used in certain vaccines.  Multiple purification steps are taken to ensure that the cells are not included in the final vaccine product.”  However, Dr. Benkel also avers that “[a]ll other school-required vaccines, including DTaP, as well as Tdap, hepatitis B, Hib, PCV and MenACWY are available in presentations for which human embryo cell lines are not used.”  Finally, Dr. Benkel indicates that she is “unsure about [petitioner’s] reference to ‘human serum albumin’ as an ingredient in DTaP, MMR, and varicella vaccines.”  Dr. Benkel states that “human serum albumin” is not “an ingredient of DTaP or varicella,” and that while the Centers for Disease Control indicates that “recombinant” human albumin is used in MMR, this “means it was manufactured in the laboratory, and not derived from humans.  There is no mention of ‘human serum albumin’ as an ingredient of DTaP or varicella vaccines.”  Petitioner submits no reply or other evidence to refute these assertions.

While petitioner claims that her opposition to the use of fetal tissue in vaccinations is based on her religious beliefs, she appears to oppose all vaccines irrespective of whether they derive from fetal material.  This position undercuts her argument that her opposition to immunization is actually religious in nature (see Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; cf. Appeal of N.C., 55 id., Decision No. 16,805).  Under the totality of the circumstances on the record before me, I find that petitioner has failed to demonstrate that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal, therefore, must be dismissed (see Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670).

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

THE APPEAL IS DISMISSED.

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