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Decision No. 15,310

Appeal of J.F. and D.F., on behalf of their daughter K.F., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding immunization.

Decision No. 15,310

(October 11, 2005)

Patricia A. Finn, Esq., attorney for petitioners

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Bayport-Blue Point Union Free School District ("respondent") that their daughter, K.F., is not entitled to an exemption from the immunization requirement under Public Health Law ("PHL") �2164. The appeal must be dismissed.

In the summer of 2004, petitioners sought to enroll their three children in respondent' s schools. On K.F.'s school health form for first grade, petitioners indicated that they were seeking a religious exemption from vaccinations pursuant to PHL �2164(9). Petitioners provided a copy of a letter requesting an exemption from immunization for K.F. that they had presented to the Longwood Central School District where their children had attended school during the 2003-2004 school year. That letter stated that petitioners had a "sincere and genuine belief contrary to the practice of immunization." However, nothing in that letter expressed their religious beliefs.

Petitioners were requested to attend a meeting on August 26, 2004 with the district's attorney and assistant superintendent for curriculum, instruction and general administration. At the meeting, petitioners presented a letter dated August 25, 2004, to respondent's superintendent requesting a religious exemption from immunization "because we hold genuine and sincere religious beliefs which are inconsistent with these medical procedures." The letter did not describe their beliefs.

After reading the letter, respondent's attorney inquired about petitioners' religious beliefs and how they changed after their older children were immunized. According to respondent's attorney, petitioners responded that they would not discuss their religious beliefs. After a recess to contact their attorney, petitioners returned. According to respondent's attorney, they made some statements about the Bible, the validity of immunizations, their pediatrician, and nutrition, but did not articulate their religious beliefs. Petitioners then left the meeting to pick up their other children.

On September 2, 2004, K.F. was denied entry to school. Petitioners declined to schedule a continuation of the prior meeting as requested by respondent's attorney. This appeal ensued. Petitioners' request for interim relief was denied on October 12, 2004.

Petitioners contend that they are entitled to a religious exemption for K.F. because their objections to immunizations are based on sincerely held religious beliefs. They seek a permanent injunction enjoining respondent from allegedly violating their constitutional rights. They further seek attorneys' fees and costs.

Respondent maintains that petitioners' objections to immunizations are not based on sincerely held religious beliefs and that its determination not to grant a religious exemption is not arbitrary or capricious. Respondent contends that petitioners failed to exhaust their administrative remedies and to file a notice of petition. Respondent further submits that the Commissioner lacks jurisdiction over constitutional issues and lacks the power to award attorneys' fees and costs.

I must first address several procedural issues. Respondent maintains that petitioners failed to file a notice in accordance with ��275.11 and 276.1(b) of the Commissioner's regulations. The copy of the petition filed in my Office of Counsel contains the notice required by �275.11. Therefore, I will not dismiss the petition for lack of notice. Since petitioners' request for interim relief was previously denied, I need not address the alleged violation of �276.1(b).

On November 30 and December 15, 2004, petitioners submitted identical, albeit differently titled, documents in response to respondent's answer, invoking certain sections of the New York Civil Practice Laws and Rules ("CPLR") and disputing respondent's affirmative defenses. Petitioners' counsel erroneously states therein that the rules applicable to an Education Law �310 appeal limit pleadings to a petition and answer only. To the contrary, �275.14 of the Commissioner's regulations explicitly permits a reply within 10 days after service of the answer to each affirmative defense contained therein. To the extent petitioners' documents could be construed as a reply, they are untimely, having been filed almost two and one-half months after service of the answer. Therefore, I have not considered them.

A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, while I have reviewed petitioners' memorandum, I have not considered those portions that raise new issues or belatedly add assertions that are not part of the petition. I note that the memorandum refers repeatedly to medical records that were neither timely nor belatedly made part of the record.

An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804). Therefore, I will not address petitioners' constitutional claims in this appeal.

In addition, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law �310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738). As such, petitioners' claims for fees and costs must be dismissed.

The appeal must be dismissed on the merits. PHL �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 issue in this appeal is whether petitioners' opposition to immunization stems from sincerely held religious beliefs. 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). However, it is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation (Sherr v. Northport-East Northport Union Free School Dist., 672 F Supp 81). 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.M. and A.N., 44 Ed Dept Rep ___, Decision No. 15,217; Appeal of D.L., 44 id. 104, Decision No. 15,111; Appeal of D.K., 44 id. 47, Decision No. 15,094; Appeal of Quigley, 41 id. 399, Decision No. 14,724). In making this determination, school officials must make a good faith effort to assess the credibility of petitioners' statements and sincerity and may consider petitioners' demeanor and forthrightness (Appeal of D.K., 44 Ed Dept Rep 47, Decision No. 15,094; Appeal of Quigley, 41 id. 399, Decision No. 14,724). 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.M. and A.N., 44 Ed Dept Rep ___, Decision No. 15,217).

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioners seek relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Here, the assistant superintendent and respondent's attorney gave petitioners an opportunity to explain their position at the August 26, 2004 meeting. The parties disagree about what transpired there. Petitioners claim in their petition that they summarily described their religious beliefs at that meeting. Specifically they state that they have chosen to live in faith, and believe that God gives them faith, protects them and provides whatever they need, including a sufficient immune system.

Respondent asserts that petitioners never provided such information at the meeting. Instead, respondent contends that petitioners initially refused to answer any questions about their religious beliefs and maintained that the district had no right to inquire about their beliefs. After a recess to contact their attorney, Mr. F. stated again that he did not want to be asked about his religious beliefs. He stated, however, that "through the Bible they have everything they need, and nothing 'foreign' should be put into their bodies." Mrs. F. said, "she always questioned the validity of immunizations and never felt comfortable with them; that the body is complete and we do not need anything other than what God gives us." Mrs. F. stated that the only thing that had changed since her other children had been immunized was that they had analyzed the Bible. Petitioners refused to answer whether there were any particular Bible passages that caused them to change their minds, whether they belonged to an organized religion, or what their specific religious beliefs were. They admitted that they had read some medical literature about immunizations that scared them, and that their pediatrician does not recommend immunization.

Respondent's administrators offered petitioners the opportunity to schedule a follow-up meeting, so petitioners could answer questions about their religious beliefs, but petitioners refused to do so. Thus, based on the information provided by petitioners, and after assessing their credibility, respondent determined that petitioners failed to articulate the religious basis or origin of their beliefs (seeAppeal of S.M. and A.N., 44 Ed Dept Rep ___, Decision No. 15,217; Appeal of Quigley, 41 id. 399, Decision No. 14,724).

Based on the record before me, I cannot find that petitioners have demonstrated that respondent's determination was arbitrary or capricious. In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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