Appeal of ERIC and BETHANY QUIGLEY, on behalf of their daughter ELENA, from action of the Board of Education of the Hilton Central School District regarding exclusion from school due to the lack of immunization.

 

Decision No. 14,724

(May 20, 2002)

Lacy, Katzen, Ryen & Mittleman, LLP, attorneys for petitioners, Lawrence J. Schwind and Lara R. Badain, Esqs., of counsel

 

Lynda M. VanCoske, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hilton Central School District ("respondent") that their daughter is not entitled to an exemption from the immunization requirements under Public Health Law ("PHL") "2164. The appeal must be dismissed.

In September 2001, Elena transferred to respondent"s Quest Elementary School from respondent"s Village Elementary School where she had attended kindergarten. When Quest"s principal, Lydia McCabe, reviewed Elena"s file, she noticed a March 10, 2000 affidavit by Mrs. Quigley requesting an exemption from immunization for Elena because of "genuine and sincere religious" beliefs. Upon investigation, Ms. McCabe learned that the principal of Village Elementary had accepted the affidavit on face value without conducting any inquiry. In addition, Ms. McCabe learned that a child in Elena"s class was undergoing treatment for cancer and that a non-immunized child could be a medical threat to that child. As a result, Ms. McCabe transferred Elena to a different first grade section and advised petitioners of this change.

On September 17, 2001, Ms. McCabe and respondent"s attorney met with petitioners to ascertain the basis for petitioners" request. By letter dated September 21, 2001, Ms. McCabe denied petitioners" request on the grounds that petitioners" opposition to immunization was not based upon a "sincere and genuine belief" but was, instead, grounded in their personal beliefs. Accordingly, Elena was excluded from enrollment in respondent"s schools on October 3, 2001. This appeal ensued. Petitioners" request for interim relief was denied on October 31, 2001.

Petitioners claim that Elena has been improperly excluded and that the denial of their request is tantamount to an arbitrary and capricious revocation of the exemption granted by the principal of the Village Elementary School. They also claim that the denial was based on an unconstitutional board policy and violates their constitutional right to the free exercise of religion.

Respondent contends that it properly denied petitioners" exemption request, that the petition fails to state a claim for which relief may be granted, that petitioners fail to meet their burden of proof, and that the Commissioner lacks jurisdiction over constitutional issues.

On February 8, 2002, petitioners submitted a copy of a recent United Stated District Court decision and order granting a preliminary injunction in another immunization case involving respondent (Curtis v. Hilton CSD, et al., [U.S.D.C., W.D.N.Y.], Telesca, J., 01-CV-6579T, dated January 28, 2002). Pursuant to my discretion under "276.5 of the Commissioner"s regulations, I have accepted this recent court decision which was also provided to my Office of Counsel by the State"s Attorney General.

I must first address respondent"s immunization policy, which provides for an exemption "if the child is a member of a recognized religious organization whose teachings are contrary to [the requirements for immunization]." Although respondent"s policy is consistent with the originally enacted version of PHL "2164(9), that statute was amended after a federal court determined that limiting the availability of the exemption to "bona fide members of a recognized religion" was unconstitutional (Sherr v. Northport-East Northport UFSD, 672 F.Supp. 81 [E.D.N.Y. 1987]). Section 2164(9) currently reads:

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.

Thus, respondent"s immunization policy is contrary to the current law, and has recently been found unconstitutional (Curtis v. Hilton CSD, et al., supra). Respondent avers however, that in spite of its written policy, it used the appropriate standard in assessing petitioners" request for exemption. Nonetheless, respondent is directed to immediately amend its policy in accordance with the current provisions of PHL "2164(9).

The issue in this appeal is whether petitioners" opposition to immunization stems from sincerely held religious beliefs, not whether petitioners are members of a recognized religious organization whose teachings oppose inoculation. The exemption from immunization 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 Ed. of the City of New York, 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 Bork, 39 Ed Dept Rep 549, Decision No. 14,307; Appeal of Murphy, 34 id. 648, Decision No. 13,439; Appeal of Swett, 34 id. 492, Decision No. 13,392). In making this determination, school officials must make a good faith effort to assess the credibility of petitioners" statements and sincerity (Appeal of Murphy, supra) and may consider petitioners" demeanor and forthrightness (seeMatter of Christine M., 157 Misc.2d 4). While school officials are not required to simply accept a statement of religious belief without some examination, they similarly should not simply reject a statement without further examination (Appeal of Murphy, supra).

The record indicates that Quest"s principal and the school attorney gave petitioners a full opportunity to explain their position. Mrs. Quigley indicated that she and her siblings, who attended respondent"s schools, were not immunized. Mrs. Quigley also indicated that her family worships on a daily basis, but not at a specific time or with regularity; reads the Bible together; and celebrates Christmas and Easter but not Santa Claus and the Easter Bunny. Further, Mrs. Quigley stated that she breast-fed her children without supplements and delivered them without drugs. In addition, in this appeal she states:

Respondent"s administrators, in a good faith effort to assess the credibility of petitioners" statements, sincerity, demeanor and forthrightness, questioned petitioners and assessed their credibility while affording them a full opportunity to explain their beliefs, and concluded that petitioners" beliefs were not based in religion but were instead rooted in their personal experiences and values. Based on the record before me, I cannot say that respondent"s determination was arbitrary or capricious.

Respondent found that Mrs. Quigley could not articulate the religious basis or origin of her beliefs, and failed to demonstrate that her religious belief regarding immunization extended to other aspects of her family"s daily lives, such as restrictions on diet, school activities or holiday celebrations. Mr. Quigley merely stated that he knew his wife"s beliefs were sincere, but could not provide a religious nexus to or basis for that belief. Although Mrs. Quigley"s opposition to immunization may be sincere, it did not appear to school officials that her opposition is religious in nature as required by the statute (see, Farina v. Bd. of Ed. of the City of New York, supra). Merely stating that God provides an immune system is not enough to demonstrate that petitioners" belief is a "genuine and sincere religious belief" (see, Galinsky v. Bd. of Educ. of the City of New York, 213 F.3d 626; Farina v. Bd. of Ed. of the City of New York, supra).

Petitioners also claim that in denying their exemption request, respondent "revoked" its earlier grant of such request. The fact that school officials at Village Elementary School allowed Elena to attend kindergarten without being immunized does not constitute acceptance or validation of petitioners" earlier request. Nor does it prevent respondent from conducting a separate inquiry or from ensuring compliance with the statute, especially since an initial inquiry was never conducted. Moreover, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Fuller, 41 Ed Dept Rep ___, Decision No. 14,623; Appeal of Holzer, et al., 37 id. 549, Decision No. 13,924).

I also note that although the federal district court recently granted a different plaintiff"s request for a preliminary injunction requiring respondent to permit her daughter to attend Quest Elementary without immunization (Curtis v. Hilton Central School District, et al., supra), that decision was made on the specific facts of that case after a hearing.

Finally, since petitioners do not seek a ruling that respondent"s actions were unconstitutional, I need not address respondent"s jurisdictional objection.

 

THE APPEAL IS DISMISSED.

 

IT IS ORDERED that respondent immediately amend its immunization policy in accordance with PHL "2164(9).

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