Appeal of I.M. and G.M., on behalf of their daughter W.M., from action of the Board of Education of the Clarkstown Central School District regarding immunization.

Decision No. 16,164

(October 19, 2010)

Feerick Lynch MacCartney PLLC, attorneys for petitioners, Mary E. Marzolla, Esq., of counsel

Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit and Stephen Forte, Esqs., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their daughter, W.M., is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

In the summer of 2009, petitioner submitted a “Request for Religious Exemption to Immunization Form” (“form”) for W.M., who entered kindergarten in the 2009-2010 school year,  and a letter in which I.M. stated that she and her husband are Jewish and have “concluded that vaccines are not consistent with our religious beliefs.”[1]  I.M. noted that she and her husband had vaccinated their children, including W.M., in the past and that the children had “experienced adverse effects which were extremely frightening.”  I.M. explained that she and her husband continued to vaccinate their children because they “did not want to oppose what we thought was the law, and perhaps attract the wrath of Children’s Services.”  I.M. cited several Biblical and other passages to explain her religious belief and her resulting opposition to immunization:

The Bible ... teaches that “Blood is life.”  (Deuteronomy 12:23)....  The composition and administration of vaccinations is in violation of G-d’s word, and is in direct conflict with the teachings of the Bible in many ways.  A conflict arises if you accept G-d’s warning not to mix the blood of man with the blood of animals.  Many vaccines are produced in animal tissues.

In our morning prayer we pray, “Blessed are you G-d, who heals all flesh and acts wondrously.”  Every time we eat, we thank G-d for not only giving us our food but for blessing us with a healthy body that is able to eat and digest.  Every physical act performed during the day is a reaffirmation of our belief that G-d is the Exalted one. “I am G-d, Your G-d.  You are to sanctify yourselves and you shall become holy for I am holy.  You shall not make your souls impure.”  (Vayikra 11:45).

According to I.M., on or about August 22, 2009, she contacted respondent’s Coordinator of Health Services (“coordinator”) to discuss the status of her request and the coordinator requested additional information and a meeting to clear up “remaining questions.”  By letter dated August 23, 2009, I.M. objected to attending a meeting on the grounds that it “may not elicit accurate information” and that “we can better [provide information] in writing following careful contemplation, rather than with a first-reaction, verbal response.”  I.M. requested that the coordinator list any remaining questions in writing, noting that they would be happy to promptly address the questions in writing, that a meeting at that time would represent a hardship and that, if time permits, “maybe an interview would be possible.”

In a September 4, 2009 letter signed jointly with the coordinator, the principal denied I.M.’s July 2009 request, stating:

You have indicated in your most recent letter ... that you did not intend to either provide additional documents or schedule a meeting.  Therefore, I must rely on that which you have provided thus far....

[O]ther than string citing biblical quotes, you have not presented a view in opposition to immunization that I can construe to be religiously based.  Rather, it is apparent that you have a strong opposition based upon what your unfortunate life experiences have been, and your belief that immunization did harm to your children....

While I am sure that you are sincere in your opposition to immunization, I find your professed reliance upon a religious objection not to be genuine and sincere, even if you had successfully set forth an objection that I could reasonably construe as religiously based.  I say this because of the more obvious reasons for objection that have been revealed, your consistent discussions with nursing staff, and a seeming lack of openness versus a desire to maintain tight control on the process.

On or about September 14, 2009, petitioner G.M. submitted an exemption request form on behalf of W.M. and attached a seven-page letter in which he explained that his sincerely held religious beliefs opposing immunizations were based upon his “own interpretation of the Torah and other Jewish writings.”  He cited various Biblical passages which formed the basis for his “belief that G-d has commanded us to guard our health and that such a command includes the need to avoid immunizations” and submitted a letter from his rabbi.

By letter dated October 2, 2009, the principal affirmed her denial of petitioners’ religious exemption request for W.M. and informed petitioners that W.M. would be excluded from respondent’s schools as of January 30, 2010.  The principal also stated that she could not accept G.M.’s September 14, 2009 exemption request, explaining that to do so would set a precedent for parents to tailor a subsequent request once a prior application had been denied.  This appeal ensued.

Petitioners maintain, interalia, that they have a sincere religious belief against immunizing W.M. and that respondent’s denial of their exemption requests was arbitrary and capricious.  Petitioners assert that respondent did not fairly and properly consider both their July and September 2009 exemption requests.  Specifically, petitioners allege that the principal improperly delegated decision-making authority to the coordinator, who influenced the principal’s decision.  Petitioners also contend that respondent failed to provide them with a written request for supporting documentation and that respondent’s request for a face-to-face meeting was unreasonable.  Petitioners maintain that respondent acted in violation of district policy and applicable law and regulations as well as constitutional prohibitions on discrimination based on religious beliefs.  Finally, petitioners seek attorneys’ fees and costs incurred in bringing this appeal.

Respondent generally denies petitioners’ allegations and contends that its determination was not arbitrary or capricious.  Respondent asserts, among other things, that petitioners’ objection to immunization is not based on genuinely and sincerely held religious beliefs, but rather is based on personal and medically-based beliefs against immunization.  Respondent further maintains that the principal and district staff acted properly in denying petitioners’ request and that, while the principal was not obligated to consider G.M.’s September 2009 request, she did review the submission.  Respondent also argues that petitioners have failed to meet their burden of proof and that the Commissioner lacks jurisdiction over constitutional issues.

Initially, I must address several procedural issues.  Respondent objects to petitioners’ reply and memorandum of law.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Similarly, 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 Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).    Therefore, while I have reviewed petitioners’ reply and memorandum of law, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s pleadings.

Petitioners claim that respondent’s conduct, including the scope of its review of petitioners’ exemption requests, violated their constitutional rights.  However, 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 J.A., 48 Ed Dept Rep 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677; Appeal of The Croton Free Library, Inc., 47 id. 182, Decision No. 15,662).  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).

Turning to the merits, PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, §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 determination of whether petitioners qualify for a religious exemption requires the careful consideration of two factors:  whether their 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 F Supp 2d 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 UFSD, et al., 672 F Supp 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 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 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/guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent/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 the 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 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 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).

Petitioners argue that “any request for supporting documentation or a face-to-face interview had to be made by the Principal in writing.”   However, petitioners cite no provision of law or regulation requiring such, and, as discussed more fully below, I do not find a verbal request from the coordinator to be unreasonable.

Petitioners also allege that the principal’s request for additional information violated the district’s Immunization Policy 5420 (“policy 5420”), which states that supporting documents may be requested “if deemed necessary by the superintendent of schools....”  While the Commissioner of Education has the authority to enforce a board policy, the Commissioner will exercise this authority only when petitioners establish that a policy has clearly been violated (Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Pulvermacher, 36 id. 333, Decision No. 13,740).  As noted above, PHL §2164 and the applicable regulations state that the principal or person in charge of the school must make the ultimate determination on whether to grant a religious exemption.  This determination necessarily includes the ability to request supporting documents, if deemed necessary (10 NYCRR §66-1.3[d]).  While respondent admits that policy 5420 does not reflect the current statutory and regulatory language, respondent also notes that it has amended its internal procedures to ensure that decisions on whether to grant religious exemptions are made by building principals, as required by both PHL §2164 and 10 NYCRR §66-1.3.  Respondent further notes that policy 5420 explicitly provides that it is “subject to the requirements of the [PHL] which may change from time-to-time.  Should there be a conflict between the [PHL] and this Policy, the [PHL] shall control.”  As a result, based on the record before me, I cannot conclude that respondent acted in clear violation of policy 5420.

I also find no merit to petitioners’ contention that the principal improperly delegated decision-making authority to, and was improperly influenced by, the coordinator.  Petitioners appear to assert that the principal was authorized to designate only the school nurse to assist in handling religious exemption requests.  To support this contention, petitioners rely on guidance from the State Education Department (“Department”), which states:

In the absence of a building school nurse, the building principal may designate an individual to issue/collect the form and distribute the immunization materials.  However, the building principal still must review all requests and communicate in writing with parents/guardians and cannot assign these duties to the designee.

In the coordinator’s affidavit, she states that she supervises the district’s nursing staff and generally oversees the district’s immunization program.  While the record indicates that the principal consulted and/or requested assistance from the coordinator at various stages in the decision-making process, there is nothing in the applicable law and regulations that prohibits her from doing so.  Further, although the Department’s guidance states that a nurse may be designated to assist the principal in processing exemption requests, it cannot be read to preclude the designation of a school health coordinator, as the principal appears to have done in this case.  Indeed, respondent’s coordinator oversees the school nurses and is herself a pediatric nurse practitioner.  Moreover, the principal asserts in an affidavit that, while she sought the coordinator’s input in this matter, the ultimate decision to deny petitioners’ request was in fact made by the principal.  Other than their conclusory allegations, petitioners produce no evidence to the contrary.  As a result, I cannot conclude that respondent’s conduct was unreasonable in this case.

Petitioners also argue that respondent failed to properly consider G.M.’s September 2009 request.  Respondent maintains that, while the principal was not obligated to consider such request, she “did fully review the submission and found it, at best, unpersuasive.”  I remind respondent of its obligation to fully consider each such request.  I have considered the September 2009 request, as will be discussed more fully below.

Petitioners contend that respondent’s denial of their religious exemption request was arbitrary and capricious because it was based primarily on respondent’s “subjective disagreement” with petitioners’ interpretation of religious texts.  To the contrary, respondent maintains that the district “has at no time questioned the genuineness and sincerity of the Petitioners’ faith in God or whether or not they are adherent Jews.”  Rather, respondent argues that petitioners have failed to establish “how ... their purported religious beliefs evidence an opposition to immunization, or form part of an overall religious belief.”  Respondent further asserts that petitioners’ objection to immunization is based on their “philosophically and medically based immunization animus.”

Petitioners deny that their opposition to immunization is based upon a “fear for [their] children’s health” and state that they hold a religious belief in the sanctity of blood, upon which their opposition to immunization is based.  In her reply affidavit, I.M. explains that the “medical history” and “life experiences” included in her July 22, 2009 letter were “merely offered as part of the life experience that lead me to question whether immunizations are in G-d’s plan for us and my ultimate formation of faith on the issue of immunizations....” 

However, although petitioners made several statements that are religious in nature, the record as a whole indicates that petitioners’ opposition to immunization stems from their fear for their children’s health and safety, rather than from sincerely held religious beliefs.  For example, in her July 22, 2009 letter, petitioner states:

Vaccines are made with toxic chemicals that are injected into the bloodstream.  All vaccines are made with foreign proteins (viruses and bacteria), and some vaccines are made with genetically engineered viral and bacterial materials.  We believe that man is made in G-d’s image and the injection of toxic chemicals and foreign proteins into the bloodstream is a violation of G-d’s directive to keep the body holy and free from impurities.

. . .

We can no longer pollute our children’s blood by giving them vaccines made from foreign genetic material prepared with fetal cells, chicken embryos, bovine serum and toxic substances such as mercury, aluminum and formaldehyde.

In his September 14, 2009 letter, G.M. also explains his beliefs in the sanctity of the blood and lists several Bible passages.  However, G.M. explains that he interprets such passages to mean that petitioners are obligated to lead “healthy lifestyles by eating healthy, exercising, and taking care to keep our bodies free from impurities that are harmful to the body....”  G.M. states that “we will be rewarded by G-d if we live in accordance with my interpretation of these passages.”

As noted above, the record also contains statements from petitioners’ rabbi, submitted as part of the September 2009 request.  While the rabbi states that petitioners’ opposition to immunization is “consistent with [petitioners’] own sincerely held religious beliefs,” he also explains that petitioners “passionately believe” that their children would “remain healthier” without being immunized and that they would be “doing physical harm” to their children by immunizing them.  According to the rabbi, based on their “practical religious experience and the religious knowledge they have acquired during the course of their lives,” petitioners believe that “the appropriate course of action is not to immunize their children because they believe it fulfills their obligation to protect their children’s health and well being.”

Respondent notes that petitioners declined to meet with district officials to further explain the basis of their religious beliefs.  However, nothing in the applicable law or regulations requires parents to attend such a meeting.  Nevertheless, based on petitioners’ submissions and the record before me, I find that petitioners have failed to establish that their opposition to immunization stems from sincerely held religious beliefs (seee.g.Caviezel v. Great Neck Public Schools, et al., 701 F Supp 2d 414 [EDNY 2010]; Appeal of H.K. and T.K., 49 Ed Dept Rep 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Accordingly, I cannot conclude that respondent’s determination was irrational, arbitrary or capricious.

I note that my decision is not based on the fact that petitioners previously immunized W.M.  The fact that an individual’s children have been immunized in the past is not dispositive in determining whether such individual has genuine and sincere religious beliefs contrary to immunizations (seeLewis, et al. v. Sobol, et al., 710 F Supp 506; Appeal of L.K., 45 Ed Dept Rep 10, Decision No. 15,243).

Finally, with respect to petitioners’ request for attorneys’ fees and costs incurred in bringing this appeal, I note that 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).

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

THE APPEAL IS DISMISSED.

END OF FILE.