Appeal of J.W.R. and E.R., on behalf of their daughter E.R., from action of the New York City Department of Education regarding immunization.

Decision No. 16,899

(April 14, 2016)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Nicole Meyer, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their daughter E.R. (“the student”) is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained in part and remanded.

In July 2013, petitioners registered their 6-year-old daughter, E.R., in P.S. 68 in Queens, New York for the 2013-2014 school year and submitted a letter dated June 4, 2013 requesting a religious exemption from immunizations in accordance with PHL §2164.  Petitioners allege that, thereafter, the school nurse requested that they file a medical exemption request, thereby showing “a lack of sensitivity to their religious beliefs and violat[ing] their rights as provided in the First Amendment of the Constitution and NYS Public Health Law 2164, paragraph 9.”

According to the record, petitioners never filed a medical exemption request but instead pursued a religious exemption request which is the subject of this appeal. On November 22, 2013, petitioners submitted a Request for Religious Exemption to Immunization Form, dated November 20, 2013, to the assistant principal, explaining that the student was exempt from vaccinations and immunizations due to their religious beliefs.  Petitioners asserted that they abide by “bible principles” and stated, among other things, that because the “bible instructs Christians to cleanse themselves of ‘every defilement of flesh,’” they “do not believe in polluting [their] bodies in any way including the practice of vaccinations.”  On the form, they quoted Bible passages and also stated that their religious beliefs “include not accepting blood into our bodies in any way” and that they have “carefully reviewed all the vaccines that are required for school admission, using the Centers for Disease Control website, and have found that each vaccine contains at least one ingredient that we find objectionable based on our religious beliefs stated above.” Petitioners’ letter was forwarded to respondent’s Health Service Coordinator (“coordinator”) who received the letter on or about January 7, 2014.

By memorandum dated January 13, 2014, the coordinator denied petitioners’ request for a religious exemption, determining that the documentation submitted was “inadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  [The student] has most of the required vaccines except for 3rd DPT., 3rd Polio, MMR, Hep.B#2 and varicella.”  The memorandum also informed petitioners of DOE’s appeal process, which includes requesting an interview with respondent’s Health Liaison for the Children First Network (“CFN liaison”), and notified them that if their appeal was denied, they could commence an appeal to the Commissioner of Education pursuant to Education Law §310.

Petitioners appealed the determination and met with the CFN liaison on January 28, 2014.  At the interview with the CFN liaison, petitioners provided additional information in response to five questions.  According to respondent, petitioners stated that their religious beliefs “include abstaining from blood” and “any medicine that is produced using blood that was collected, would be objectionable to us.”  They also stated that they “belong to an organized religion, but [are] encouraged to use [their] own bible trained conscious [sic] in making decisions in the use of blood fractions.”  They further stated that they have “only done research on those [vaccines] required for [the student’s] schooling so [they] cannot speak to [whether they would accept] other immunizations” and they “had not done much research initially to allow her to receive the shots she did get.”  The record indicates that the CFN liaison then memorialized petitioners’ responses and forwarded them to the coordinator for consideration.

By memorandum dated March 4, 2014, the coordinator denied petitioners’ appeal, stating that “[t]he documentation you submitted and the information provided during the appeal interview do not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”  The memorandum also informed petitioners that they could appeal to the Commissioner of Education within 30 days pursuant to Education Law §310, and that during the appeal process, the student would not be permitted to remain in school.  This appeal ensued.  Petitioners’ request for interim relief was denied on April 1, 2014.

Petitioners assert that they have genuine and sincere religious beliefs that are contrary to immunization.  Petitioners also claim, inter alia, that respondent acted arbitrarily, denied their due process rights and failed to provide them with specific reasons for the denial of their request.  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 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.

Initially, I must address several procedural issues. An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  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).  Therefore, to the extent that petitioners attempt to raise constitutional issues in regard to this appeal, I decline to consider such constitutional claims.

Pursuant to §276.1 of the Commissioner’s regulations, an affidavit in opposition to an application for a stay "shall be served on all other parties ... within three business days after service of the petition, unless the Commissioner shall provide otherwise."  Respondent served petitioners with an amended affirmation containing a small number of minor corrections and a notarized copy of the CFN liaison’s affidavit one day after serving its original affirmation containing an exhibit of the CFN liaison’s affidavit without a notarized signature.  Because respondent immediately cured any alleged defect, I find that there is no prejudice to petitioners and, accordingly, I have considered respondent's amended affirmation and accompanying exhibit in deciding this appeal.

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 a 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 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 a petitioner’s statements and may consider a 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).

According to the coordinator’s affidavit, one factor considered by the coordinator 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, petitioners explained that “we had not done much research initially to allow [the student] to receive the shots she did get-being that she is our first child; we have no other children.”

To support their claim that respondent’s determination is arbitrary and capricious, petitioners state, among other things, that their “religious beliefs include abstaining from blood” due to scriptural principles, and that therefore “any medicine that is produced using blood ... would be objectionable.”  Petitioners also claim that they object to vaccinations because, among other things, “we should respect our bodies and not defile them” and “we do not believe in polluting our bodies in any way including the practice of vaccination.”  They also cite various verses from the Bible.  I note that I have generally held that mere citations to statements that 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 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).  However, in the instant appeal, although petitioners cite to Biblical texts and religious materials, they further explain and specify the precise nature and origin of their beliefs and there is no evidence that petitioners’ position is not religious in nature or based on philosophical, scientific, medical or personal preference.  To this extent, petitioners’ appeal must be sustained.

However, the appeal must be remanded with respect to the question of whether petitioners have submitted evidence sufficient to support their claim of a linkage between the use of blood and animal tissue in vaccines to which they object (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,491; Appeal of C.O., 52 Ed Dept Rep, Decision No. 16,421).  In the instant appeal, petitioners provide a vaccine ingredient list allegedly taken from the Centers for Disease Control (“CDC”), which appears to outline specific ingredients in each vaccine to which they object.  Specifically, petitioners provide a chart which purports to detail the specific objectionable ingredients, such as “Stainer-Scholte medium,” “calf serum,” ”bovine serum,” and “fetal bovine serum” contained in the required vaccines which they oppose in an effort to establish a nexus between their claimed religious objection to human and animal blood and the practice of vaccination.[1]

Respondent asserts that such information was never presented to the coordinator or CFN liaison at any time prior to the commencement of this appeal and provides an affidavit from the CFN liaison averring that petitioners did not offer any such documentation at the January 28, 2014 interview.  However, petitioners assert that they offered to provide the CFN liaison with a copy of the vaccine ingredient list but were allegedly informed that “it’s not necessary.”  Petitioners further assert that the CFN liaison’s interview notes included clerical errors which resulted in a “serious misrepresentation of Parents [sic] sincerely held religious beliefs.”  Although, according to the CFN liaison’s affidavit, the CFN liaison transcribed petitioners’ exact responses to five questions and reported those responses to the coordinator, the record as a whole tends to support petitioners’ claim that they attempted to provide respondent with evidence indicating which vaccines actually contain the ingredients to which they object.  Accordingly, I will remand this matter to respondent for a full determination of whether petitioners have submitted evidence as part of their request and this appeal to support their claim of a linkage between the use of human and animal blood and the vaccines to which they object.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 30 days of this order, respondent make a determination, in accordance with this decision, as to whether the student is entitled to an exemption from the immunization requirements of PHL §2164 and that, in making such determination, respondent shall consider all relevant information submitted by petitioner.

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