Appeal of M.W., on behalf of her daughters C.W. and M.W., from action of the Board of Education of Orchard Park Central School District regarding immunization.

Decision No. 17,603

(March 20, 2019)

Housh Law Offices, PLLC, attorneys for petitioner, Frank Housh, Esq., of counsel[1]

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Orchard Park Central School District (“respondent”) that their daughters (“the students”) are not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

According to petitioner, the students previously attended a different school district in New York State that  had granted a religious exemption request made by petitioner on behalf of the students in or about January 2015.

On or about October 1, 2018, petitioner submitted to respondent separate religious exemption requests on behalf of each student.  The requests were notarized on January 12, 2015 and addressed to the students’ prior school district of residence.  In the requests, petitioner indicated that her “family [members were] now members of the Temple of the Inner Flame Church” and that it was “against our belief system for foreign substances such as vaccines to enter our bodies.”  Petitioner attached to each request an undated letter from “Reverend Carol Ann Liaros” who asserted, on behalf of the “Temple of the Inner Flame” church, that such organization’s tenets “include not taking any harmful or foreign substances into our bodies, which includes ... foreign substances (vaccines).”

Respondent’s director of special programs (“director”) denied petitioner’s requests on October 4, 2018.  The director indicated that she denied petitioner’s requests for three reasons: (1) the dates of the requests were approximately three years old and the requests were addressed to a different school district; (2) petitioner “did not explain, in [her] own words, why [she was] requesting a religious exemption”; and (3) petitioner did not indicate whether she was “opposed to all immunizations, and if not, the religious basis that prohibits particular immunizations.”  The director requested that petitioner provide the district with the date when the students would receive their required immunizations within 14 days.

In a letter dated October 23, 2018, the district reiterated that petitioner’s request for religious immunization exemptions were denied and that she needed to provide proof of the students’ immunization to the district.   If petitioner did not provide such proof by October 25, 2018, the director wrote, the students would be excluded from respondent’s schools as of October 26, 2018.

On or about October 25, 2018, the director received a telephone message from petitioner in which she indicated that she was traveling out of the country and planned to appeal respondent’s determination pursuant to Education Law §310.  In the telephone message, petitioner requested that the students be allowed additional time to attend respondent’s schools.  The director, after consulting with the superintendent, allowed the students to continue attending school “until such time [as the district] receive[d] and review[ed] the appeal to the Commissioner, but no later than Friday, November 2.”  This appeal ensued.  Petitioner’s request for interim relief was denied on November 9, 2018.

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs and seeks a determination that the students are entitled to a religious exemption from the immunization requirements under PHL §2164.

Respondent contends that the appeal must be dismissed because the notice of petition does not include petitioner’s name, address, and telephone number as required by 8 NYCRR §275.4(a).  Respondent further contends that petitioner’s claimed objections to immunizations are not based on genuine and sincerely-held religious beliefs.

First, I must address two preliminary matters.  Respondent first contends that appeal must be dismissed based on petitioner’s failure to endorse the notice of petition in accordance with 8 NYCRR §275.4(a).  While respondent is correct that the notice of petition does not include petitioner’s name, address, and telephone number, petitioner included such information in her petition and petitioner’s affidavit of service indicates that the notice of petition and petition were served together on November 1, 2018.  Moreover, when she served the petition, petitioner was proceeding pro se.  A liberal interpretation of the rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of Smith, 40 Ed Dept Rep 172, Decision No. 14,452).   Therefore, I decline to dismiss the appeal for petitioner’s failure to properly endorse the notice of petition (see Appeal of Fillie-Faboe, 34 Ed Dept Rep 643, Decision No. 13,438 [declining to dismiss appeal where pro se petitioner failed to include her post office address and telephone number in petition]).

Next, petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Turning to the merits, 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 petitioners qualify for a religious exemption requires the careful consideration of two factors:  whether petitioners’ 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).  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 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 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 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 documentation (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 petitioners’ statements and may consider petitioners’ 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 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).

Upon careful review of the record, I cannot find respondent’s determination that petitioner failed to demonstrate a sincerely-held religious belief in opposition to immunization to be arbitrary or capricious.  The entirety of petitioner’s religious exemption request for each student reads as follows:

Due to the fact that my family is now members of the Temple of the Inner Flame church [the student][2] will not be receiving her immunizations.  It is against our belief system for foreign substances such as vaccines to enter our bodies.

I do not find that petitioner’s conclusory statement that it is “against our belief system” to allow “vaccines to enter our bodies,” standing alone, evinces a genuine and sincerely-held religious belief.  I have 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).  I find that petitioner’s statements quoted above constitute general statements concerning petitioner’s religious beliefs; as such, they are insufficient to demonstrate a genuine and sincerely-held religious belief against immunization.  Therefore, petitioner has failed to meet her burden of proving that respondent’s denial was arbitrary or capricious.

On appeal, petitioner has submitted a different version of her exemption request, dated November 1, 2018, which states as follows:

Due to the spiritual beliefs of my families [sic] religion, [the students] cannot receive any medical vaccines.  They are a foreign substance that is not naturally found in the body.  We consider our bodies a temple of God that should be treated as such.

Respondent asserts that it did not receive a copy of this request at the local level and only received it when petitioner served the instant appeal on November 2, 2018.  Respondent objects to the admission of this statement on appeal because it did not have a chance to consider it below.  I need not resolve this dispute, however, because even if I were to accept petitioner’s statement, I would find that it, like the original exemption request, merely sets forth general statements which are insufficient to demonstrate a genuine and sincerely-held religious belief.

Finally, petitioner submits a letter submitted on her behalf by “Reverend Carol Ann Liaros” of the “Temple of the Inner Flame” in support of her exemption request.  I find that this letter, while entitled to some weight, fails to conclusively establish that petitioner holds genuine and sincerely-held religious beliefs contrary to immunization.  The letter, addressed “To Whom It May Concern,” indicates that the Temple of the Inner Flame’s “beliefs” include a prohibition against “harmful or foreign substances” entering one’s body, including “excessive alcohol, recreational drugs, and foreign substances (vaccines).”  There is no further information in the record, however, as to the nature of the “beliefs” of the Temple of the Inner Flame church and I find that the contents of this letter are not dispositive in determining whether a genuine and sincere religious belief against immunization exists (see Appeal of S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439).

 In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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