Appeal of R.R., on behalf of his son M.V.L.R., from action of the Board of Education of the Great Neck Union Free School District regarding immunization.

Decision No. 16,663

(September 2, 2014)

Frazer & Feldman, LLP, attorneys for respondent, Joseph W. Carbonaro, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Great Neck Union Free School District (“respondent”) that his son (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

In the petition, petitioner claims that, by letter dated November 22, 2012, he sought a religious exemption to all immunizations required pursuant to PHL §2164 for his son’s “enrollment in Kindergarten for the Fall of 2014.”  Petitioner stated that his request was based upon his “personal understanding of Judaic law.”  Petitioner also explained how his familial relationships, Jewish tradition and heritage played an important role in his recovery from drug addiction and how he began to study Judaism.  Petitioner further explains that his “turning point” was “meeting certain Jewish parents who refused vaccination.”  Petitioner asserts that he opposes all vaccinations because of his Judaic beliefs.  Specifically, petitioner states that he believes that it is “the most antithetical medical procedure to our faith” and “emblematic of Man’s indifference to faith, partly because there is no other medical process that embraces the mantle of conceit so completely as to ambitiously and presumptuously claim to eradicate all disease by chemically transforming the holiest corporeal element of the bodies that G-d bestowed to us-our blood.”  Petitioner also objects to immunizations because “they’re injected right into the blood. And what’s injected is blood cells from animals, antigenetic viral components, and all manner of humoral fluids.”  Petitioner also cites to several biblical verses and passages in support of his opposition to immunizations.

Upon receipt of petitioner’s exemption request letter, respondent’s elementary school principal (“the principal”) contacted petitioner and requested a meeting to further discuss his exemption request.  A telephone conversation took place between petitioner and the principal on April 10, 2013.  By letter dated June 2013 and postmarked June 27, 2013, the principal denied petitioner’s request stating that “parents/guardians may only apply for an exemption based on a sincere and genuine religious belief. Philosophical, political, scientific or sociological objections to immunizations do not justify an exemption as per the Department of Health Regulations 10 NYCRR, Section 66-1.3.  Consequently, after careful thought and consideration, we are unable to grant your request.”

By letter dated August 28, 2013, petitioner appealed to respondent’s board of education (“board”).  By letter dated September 11, 2013, the superintendent informed petitioner that “the Board of Education does not hear appeals on matters regarding immunization and [the principal’s] letter of June 2013 is the District’s response on this matter.  His letter represents the final local administrative remedy available to you.”  This appeal ensued.  Petitioner’s request for interim relief was denied on October 21, 2013.

Petitioner asserts that he has genuine and sincere religious beliefs that are contrary to immunization. Petitioner also claims that respondent failed to provide him with specific reasons for the denial of his request. He seeks a religious exemption from all vaccines pursuant to PHL §2164.

Respondent contends that the appeal is untimely. Respondent also maintains that the denial of petitioner’s request for a religious exemption was proper because petitioner’s objections to immunizations are not based on genuinely and sincerely held religious beliefs, but rather are based on philosophical, political, scientific or sociological objections to immunizations.  Respondent further asserts that its determination was rational, not arbitrary or capricious, and in all respects proper.

 I must first address the procedural issues. Petitioner provides an affidavit containing his own transcription of the April 10, 2013 telephone conversation with the principal, claiming that such recording was made intentionally in support of his exemption request because petitioner was “skeptical” of the principal’s request to speak with petitioner about his exemption request.  I note that §4506 of the Civil Practice Law and Rules provides that any evidence obtained by illegal eavesdropping is inadmissible in any hearing or proceeding before any department, officer, agency or other authority of the State.  Under this section, an aggrieved party in a proceeding must make a motion before a justice of the Supreme Court in order to suppress the contents of an unlawfully recorded conversation.  In this case, respondent made no such motion.  However, in its answer respondent states that it lacks information sufficient to admit or deny whether the transcription is a complete and accurate recording of the entire telephone conversation.  On the other hand, petitioner submits the transcript as part of an affidavit in which he avers that such is the “complete conversation”.  Therefore, I have considered this information as part of the record in this case (cf. Appeal of a Student With a Disability, 52 Ed Dept Rep, Decision No. 16,491).

By letter received by my Office of Counsel on October 30, 2013, petitioner sought permission pursuant to §275.3(b) of the Commissioner’s regulations to submit a reply in response to respondent’s affirmation in opposition to petitioners’ request for interim relief.  I note that petitioner has also submitted a reply to respondent’s answer.  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).  Therefore, I have considered petitioner’s reply documents to the extent they are responsive to respondent’s papers in opposition to the stay request and answer and do not add claims that should have been in the petition.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

The record indicates that, by letter dated June 2013 and postmarked June 27, 2013, the principal denied petitioner’s exemption request and informed him that, should he wish to appeal the determination, he could file an appeal with the Commissioner within 30 days of the decision in accordance with Education Law §310.  However, instead of commencing an appeal to the Commissioner, petitioner appealed directly to the board by letter dated August 28, 2013.  In this letter, petitioner stated that he was required to exhaust his administrative remedies by appealing to the board and that the principal’s June 2013 letter did not “specify a deadline to submit this local request for reconsideration.”  However, respondent denies that an appeal to the board was required under these circumstances and it is well-settled that a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  As noted above, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of a Student with a Disability, 53 Ed id., Decision No. 16,590; Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  I find no unusual circumstances sufficient to excuse petitioner’s delay in this instance.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on 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 petitioner qualifies for a religious exemption requires the careful consideration of two factors:  whether petitioner’s 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 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 Union Free School Dist., 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 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 petitioner’s statements and may consider petitioner’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 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).

Upon careful consideration of the entire record, I find that petitioner has failed to meet his burden of establishing that his opposition to immunization stems from sincerely held religious beliefs.  Petitioner states, among other things, that “one who claims to believe in the supremacy of providence, and also gets vaccinated, is hedging his bet on faith.  With that vaccine, he’s placing a bet that living a righteous and moral life will not provide rewards as the Torah promises.”  He also cites different verses from the Bible.  However, while these statements 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 that petitioner holds 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).

Moreover, petitioner claims that he objects to vaccinations because, among other things, “Leviticus establishes our blood as sacred and there must not be a mixing of something sacred, as it dilutes purity.”  Petitioner also states that “the elements in vaccines, and also blood transfusion... contain animal and human blood products and its foreign DNA components as well.”  These statements do not, in and of themselves, establish a sincerely held religious objection to immunization (see e.g. Appeal of O.M and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of L.S., 50 id., Decision No. 16,180), and instead reflect medical and philosophical objections to immunization (see Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).

Furthermore, petitioner fails to establish any nexus between his claimed religious objection to animal and human blood or DNA and the practice of vaccination (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  In addition, he seeks exemption from all vaccinations, without distinguishing which among them might contain such animal or human blood products or DNA (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).

Petitioner also asserts that respondent failed to provide sufficient explanation of the reasons for denying his request for a religious exemption.  To support his claim, petitioner relies on guidance from the State Education Department (“Department”), which states that a decision to deny a request for a religious exemption must be in writing and “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”  Petitioner alleges that the principal’s June 2013 denial letter was not specific enough to provide an adequate basis from which to appeal.  Petitioner alleges that the only rationale that the principal provided in his denial letter was “the perfunctory remark, ‘after careful thought and consideration, we are unable to grant your request.’”  However, the principal’s letter also states that “[p]hilosophical, political, scientific, or sociological objections to immunizations do not justify an exemption as per the Department of Health Regulation....  Consequently, after careful thought and consideration, we are unable to grant your request.”

Finally, I find no merit to petitioner’s claim that respondent improperly requested a meeting.  While nothing in the applicable law or regulations requires parents to attend such a meeting, there is also nothing that prohibits school officials from requesting a meeting with parents.  Nevertheless, while the record indicates that, after reviewing petitioner’s exemption request, questions remained about the existence of a sincerely held religious belief, the principal requested a meeting but did not request supporting documents from petitioner, as required by Department of Health regulations (see 10 NYCRR §66-1.3[d]).  As a result, respondent is urged to review its communications, processes and procedures to ensure compliance with applicable laws, regulations and guidance in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions (see Appeal of A.C., 50 Ed Dept Rep, Decision No. 16,175).

Accordingly, on the record before me, I find that petitioner has failed to carry his burden of demonstrating that his opposition to immunization stems from sincerely held religious beliefs or that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal must, therefore, be dismissed.

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

THE APPEAL IS DISMISSED.

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