Appeal of D.M. and K.M., on behalf of their son M.M., from action of the New York City Department of Education regarding immunization.

Decision No. 16,863

(January 7, 2016)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their son, M.M. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

During the 2014-2015 school year, petitioners’ son attended school at P.S. 185M in respondent’s school district.  By letter dated July 1, 2014, petitioners sought a religious exemption to immunizations required pursuant to PHL §2164, stating that “as practitioners of the Yoruba religion we believe that any foreign inoculations, not in accordance with our spiritual purposes, is against Ìsèse Olùwa (God’s Order).”  Petitioners further asserted that “not being inoculated does not mean that [petitioners’] family does not take every precaution to live a healthy lifestyle, inclusive of regular health checkups, healthy diet and exercise.” Petitioners explained that the student has never received the Measles, Mumps, and Rubella vaccine (“MMR”) and currently attends a non-public pre-school on a part-time basis pursuant to a religious exemption granted by the non-public preschool.

By memorandum dated September 12, 2014, respondent’s Health Service Coordinator (“coordinator”) in respondent’s Office of School Health (“OSH”) requested additional information from petitioners to determine whether a religious exemption was warranted.  Specifically the coordinator requested that petitioners submit additional documentation explaining in their own words why they are requesting a religious exemption, a description of the religious principles that guide petitioners’ objections to immunizations, and a statement as to whether petitioners are opposed to all immunizations, and if not, the religious basis that prohibits particular immunizations.

Petitioners subsequently submitted supplemental documentation which included a second letter from petitioners, dated September 15, 2014, which was virtually identical to petitioners’ July 1 letter.  In addition, petitioners submitted a letter of support from Mr. Baye Kemit, who petitioners identified as a priest in the Yoruba religion, stating verbatim the exact same premise for petitioners’ religious objections as included in both of petitioners’ exemption requests.

By memorandum dated October 14, 2014, the coordinator denied petitioners’ immunization exemption request on the grounds that petitioners’ documentation was inadequate to warrant an exemption and did not substantiate that petitioners hold “genuine and sincere religious beliefs which are contrary to immunization.” Petitioners were further informed that their exemption request was being denied due to “a critical contradiction,” and that the student has all of the required vaccines “except for ’MMR [sic].”  Petitioners were also informed that they could appeal the determination by arranging an interview with Marsha Friday, a Health Liaison for the Children First Network (“CFN liaison Friday”).  Petitioners did so and on or about November 7, 2014 they interviewed with Renee Marin (“CFN liaison Marin”) in place of CFN liaison Friday, who was unavailable that day due to illness.  The record indicates that during the interview, CFN liaison Marin asked petitioners questions related to their opposition to immunizations and religious basis for their beliefs.  In response, petitioners acknowledged that they were not opposed to all vaccines and stated that their primary opposition to the MMR vaccine was based on a belief that it was not necessary to expose the student to the vaccine because rates of transmission for measles, mumps and rubella are negligible.  Petitioners further stated that they would see a need to vaccinate the student if they were to travel to regions with a high transmission rate for those illnesses.  

By memorandum dated January 6, 2015, subsequent to petitioners’ interview with CFN liaison Marin, the coordinator denied petitioners’ appeal, stating that the documentation submitted by petitioners and the information provided during their appeal interview do not substantiate a finding that they hold genuine and sincere religious beliefs which are contrary to immunization.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 19, 2015.

Petitioners assert that they have genuine and sincere religious beliefs that are contrary to immunization.  Petitioners seek a religious exemption for the student pursuant to PHL §2164.

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

PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations.  However, PHL §2164(9) provides as follows:

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 for M.M. 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; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410).  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 K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 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 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 assert that CFN liaison Marin did not afford them the opportunity to confirm the accuracy of Marin’s summary of petitioners’ November 17 interview before Marin submitted her summary to the coordinator.  Petitioners’ also object to CFN liaison Marin’s interview comments and notes because they do not contain her signature.  Petitioners also contend that Marin’s comments and notes have “fault.”  However, petitioners do not cite any statute, rule, or regulation which requires that a record of the interview contain a signature or be provided along with a determination.  In addition, petitioners fail to provide any additional details as to specific faults with CFN liaison Marin’s comments and notes.  Accordingly, I find no merit to these claims.

The coordinator avers that one factor she considered in denying petitioners’ request was the student’s immunization history.  However, the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243).  Indeed, in an affidavit submitted with their petition, petitioners explain that:

[b]efore the last presentation of vaccines to us by our pediatrician, this past December- a few months before our son’s 5th birthday ... we did reflect on our faith and sought help of counsel and prayer from our Yoruba priest.  It became clear to us that as faithful, the act of vaccination is an offense to our religious beliefs. 

Respondents also argue that petitioners’ assertion that their opposition to immunization is based on sincerely held religious beliefs is undermined by their statements that they “believe in medical interventions when necessary and take certain medications or procedures when needed.”  In this regard, I note that the fact that petitioners would consent to medical treatment of a sick child is not necessarily determinative.  Individuals need not oppose medical treatment per se to qualify for a religious exemption, but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 FSupp 506).  However, petitioners fail to explain how their religious beliefs allow medical treatment under certain circumstances but not others.

Petitioners submit an affidavit in support of their petition which states, among other things, that “[t]he Yoruba religion is based on numerous deities called Orishas (Gods)” and “[h]aving become faithful practitioners of the religion, what we put into the body is reviewed under the light of our religious beliefs.”  Petitioners further state that “[o]ur religious beliefs are clear, that we cannot enter into the healthy body, substance that does not appeal to the spiritual energy or Orisha” and that:

For this reason our religious beliefs dictate that we cannot smoke cigarettes, use drugs, nor ingest or inject substance into a healthy body, as none of these are in the natural order of things as prescribed by our faith.

Such general 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 suggest 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).  Indeed, the coordinator avers that, on January 12, 2015, petitioners came to her office and stated that they wanted to “delay [M.M.] receiving the MMR vaccine for medical reasons.”  The record also indicates that during their November 17 interview, petitioner stated that they may see a need to immunize M.M. with the MMR if they were to travel to regions with high transmission rates for those illnesses.

Petitioners also claim that they object to vaccinations because, among other things:

As a Yoruba family, we (parents and child) do not consume any beef directly or by-products. The MMR vaccine contains by-products of slaughter animals that we do not consume: Fetal bovine serum ... Bovine serum....

However, petitioners fail to provide any documentation which attempts to establish a nexus between the MMR vaccine and their claimed religious objection to beef or animal by-products (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294). 

Furthermore, by their own admission in the petition, petitioners acknowledge that they did not sufficiently respond to the OSH coordinator’s request for additional information and that:

it was only after an explanation from our attorney did we understand that we did not answer “the” questions:  Explain in your own words why you are requesting this religious exemption. We did not do this. Rather, Our senior provided a letter and our statement simply recited his words.  Describe the religious principles that guide your objection to immunization. We did not do this. Rather, we simply stated we have them.

While the record reflects that petitioners may sincerely object to immunizations, the crux of the issue whether the reasons for their objections are religious or predominantly philosophical, personal, a medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 FSupp2d 414 [EDNY 2010], aff’d 500 Fed Appx. 16[2d Cir. 2012], cert. denied 133 S. Ct. 1997[2013]).  The record as a whole lacks evidence of sincerely-held religious objections to immunizations.  Accordingly, I find that petitioners have failed to demonstrate that their 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 (see Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670).  The appeal, therefore, must be dismissed.

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

THE APPEAL IS DISMISSED.

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