Appeal of B.S., on behalf of her son A.S., from action of the Shefa School regarding immunization.

Decision No. 17,058

(March 7, 2017)

Chesney & Nicholas, LLP, attorneys for petitioners, John M. Gherlone, Esq., of counsel

Skyer and Associates, LLP, attorneys for respondent, Jesse Cole Cutler, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Shefa School (“respondent” or “Shefa”), a nonpublic school, that her son, A.S. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained.

By letter dated November 3, 2015, petitioner requested a religious exemption on behalf of the student, who was attending Shefa.  In her letter, petitioner stated that “[m]y religious and cultural roots are embedded in Judaism.”  She also indicated that she was:

[v]ery aware that Judaism doesn’t take a specific position on vaccination. Vaccines were invented long after Judaic laws were established....  [b]ut it’s well within the Talmudic tradition to question generally accepted secular practices in society in the context of Jewish law and tradition.

Petitioner elaborated upon her understanding of Jewish law and tradition and described her religious practices including studying Torah, observing kosher dietary practices, and celebrating Jewish holidays and rituals.

Petitioner further described her reaction when she learned about the contents of vaccines in or around November 2012:

[s]urprised to learn that vaccines contained many non[-]kosher ingredients, such as blood cells, cow pus, cells from pigs and other animals, and humoral fluids.  In other words, the ingredients are animal based, or what the industry calls biologicals.  I’m not sure what I had previously assumed they contained.  Probably just synthesized chemicals like most drugs. 

Petitioner further stated that she was made aware that “vaccines violate the ‘Blood’ commandments of Judaism” during a discussion group.  In support of her position, petitioner provided a link to a website operated by the Centers for Disease Control and Prevention (“CDC”). 

In addition, petitioner stated that “the practice of vaccination undermines faith itself....”  Petitioner also cited various biblical texts and offered her explanation of the texts by stating, for example, her interpretation of those biblical verses and that:

[t]he pact between myself and G-d is ancient and pre-ordained.  To administer man-made vaccines would be a violation and an offense to my sacred relationship with G-d....  Faith is as central to Judaism as any religion.  And vaccination, with its assurance of ‘salvation’ from disease, makes a mockery of that faith in G-d.

The record indicates that respondent’s head of school reviewed petitioner’s exemption request and by email dated November 4, 2015, expressed “concerns whether [petitioner’s] beliefs [we]re religious or philosophical in nature” and requested additional documentation from petitioner.  By letter dated November 8, 2015, petitioner provided additional information in response to respondent’s request and directed respondent to the information contained in her original exemption request.

By letter dated November 19, 2015, respondent notified petitioner that her request was denied because her claims seemed more grounded in philosophy than in any formal religious belief.  The record reflects that, on November 20, 2015, petitioner met with the head of school and a school psychologist to discuss her exemption request.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 19, 2016.

Petitioner contends that her objections to immunizations are based on genuine and sincerely held religious beliefs.  Petitioner also contends that the head of school’s denial of her request was arbitrary and capricious because she failed to sufficiently evaluate the sincerity or religious nature of her beliefs.  Petitioner seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164. 

Respondent contends that petitioner failed to provide sufficient information to support a religious exemption and that petitioner's objections to immunizations are not based on genuine and sincerely held religious beliefs.[1]

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 FSupp2d 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 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 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).

 As a preliminary matter, to the extent petitioner argues that respondent failed to sufficiently evaluate the sincerity or religious nature of her beliefs, such claim is without merit.  The record indicates that respondent’s head of school reviewed petitioner’s documentation in support of her exemption request, provided petitioner with an opportunity to submit additional documentation clarifying her position, and met with petitioner to discuss her religious beliefs regarding her exemption request.  As described above, respondent’s November 19, 2015 letter stated that respondent’s denial was based on its determination that petitioner’s beliefs were philosophical rather than religious in nature.  Here, I find that the record as a whole demonstrates that respondent sufficiently apprised petitioner of the reason why it rejected her application.

Turning to the merits, I find that petitioner has sufficiently demonstrated a genuine and sincere religious belief within the meaning of PHL §2164. In support of her exemption request, petitioner states that she had been following her pediatrician’s vaccine schedule since her child’s birth, but discontinued such vaccinations after attending a Jewish Torah discussion about the laws of Kashrut in or about November 2010.[2]  Petitioner elaborates that:

[d]uring that discussion, many sub topics were raised about what is considered pure or impure, and thus holy and unholy.  The topic of vaccines was raised....  I spent the rest of that week researching this new information to confirm what was discussed ... after learning about this in the study group and having a chance to consult with a Rabbi and other religious parents, it led me to request exemptions from any other vaccines....

Petitioner further stated that “[i]t is really important to us to be able to ‘right this ship’ with G-d and with our children....  Our Rabbi in New York taught us, early in our adult learning class, that if we do not know of a certain Jewish law, then we are not going to be held accountable to G-d for not following it.  But once we are made aware of a Jewish law, and how it is being violated by our actions, then we must stop those actions, or we will be held accountable to G-d.” 

Petitioner acknowledges that she believes in other forms of medical intervention, including EpiPens, which the student is “required” to carry.  Petitioner specifically states that use of an EpiPen is consistent with her religious beliefs because “EpiPens contain the active ingredient adrenaline, which is a hormone produced naturally by the body.”

While 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 insufficient 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), petitioner uses Biblical verses and passages to explain the precise nature and origin of her beliefs as described in her November 3, 2015 and November 8, 2015 exemption requests.  Her beliefs appear to be based on her own interpretation of the Torah in accordance with her Jewish upbringing, are religious in nature, consistent, and straightforward.  Further, there is no evidence in the record before me that petitioner’s position is not religious in nature or that it is based on philosophical, scientific, medical or personal preferences.

To further support her religious exemption request, petitioner explains that she objects to specific ingredients contained in vaccines because they are derived from animals and, thus, are not kosher.  Petitioner provides a detailed description of her objections to multiple ingredients listed in vaccines identified on a website operated by the CDC.  Petitioner explains her reasoning as follows:

G-d wants us to be holy, and not mix our blood with animal blood....  The injection into a child’s body of blood cells and antigens from animal cells, and live animal blood cells and other animal-based ingredients, contradicts my understanding of the commandments to keep the body pure and holy.  The reason why [this] relates to the Jewish law [is] that we may eat only food that is deemed kosher.  In order for meat to be kosher, it must come from a permissible animal ... [thus the animal needs] to be slaughtered according to the laws of schechita....  Once this has been done, properly slaughtered meat must be salted for a time before cooking to draw out all the blood.... 

Petitioner further explains that “[a]ll that effort ...  is designed to remove all the blood from the meat before it is eaten” and asserts that the “prohibition against eating blood is so strong that we check eggs for blood spots, because even small blood spots cannot be eaten.”  Petitioner also states that “vaccines contain blood cells, viral particles and cellular debris from animals - which is specifically proscribed in the bible.”

I find that petitioner’s objections based upon vaccine ingredients are religious in nature, based upon her interpretation of the Torah, including its dietary restrictions, and grounded in her upbringing in the Jewish religion (see Appeal of B.O-G., 51 id., Decision No. 16,294; Appeal of D.W. and N.W., 50 id., Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845).  Moreover, respondent has not submitted any evidence to rebut petitioner’s evidence concerning the linkage between vaccines and the materials to which petitioner objects.  Thus, I find that the record in this proceeding contains evidence of a possible linkage between vaccines and the use of materials to which petitioner objects on religious grounds (see Appeal of B.O-G., 51 Ed Dept Rep, Decision No. 16,294).  Aside from its own conclusory statements and assertions, respondent fails to identify any specific examples to support its characterization of petitioner’s beliefs.  

Based on the record before me, I find that the weight of the evidence supports petitioner’s contention that her opposition to immunization stems from sincerely held religious beliefs.  Respondent’s argument that petitioner’s objection to immunization is not based on Jewish law or tradition is of no merit.  Prior decisions have held that it is not necessary for a person to be a member of an organized religion which opposes immunization to claim the statutory exemption (Sherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 FSupp 81).  Accordingly, it is not necessary for petitioner’s religious objections to be in accordance with Jewish law or tradition or that of any other organized religion, provided that they are religious in nature (Appeal of D.W. and N.W., 50 Ed Dept Rep, Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845).

Contrary to respondent’s assertion, there is nothing in the record which establishes that petitioner’s objection to immunization is based solely on philosophical, scientific, medical or personal preference.  Petitioner’s beliefs and her objection to immunization appear to be principally based upon her interpretation of Biblical passages, concepts and practices found in the Jewish faith; therefore, her objection is religious in nature (Appeal of L.S., 48 Ed Dept Rep 227, Decision No. 15,845).  

Moreover, the fact that petitioner changed her mind concerning vaccination does not evince a lack of sincerity.  I have generally held that exemptions granted by a previous school are not dispositive of a subsequent exemption request.  School officials are obligated to make their own determination of whether children qualify for a religious exemption and fully consider each request for an immunization exemption (see Appeal of O.M. and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of O.M. and R.M., 51 id., Decision No. 16,267; Appeal of I.M. and G.M., 50 id., Decision No. 16,164).  Similarly, the fact that petitioner’s child was immunized in the past is not necessarily dispositive in determining whether petitioner has genuine and sincere religious beliefs (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250) although it does have a bearing on the assessment of the sincerity of the alleged religious beliefs (see Caviezel v. Great Neck Public School et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16 [2d Cir. 2012], cert. denied, 133 SCt 1997).

Here, the record shows that petitioner had previously immunized the student prior to November 2010, and that she had not applied for an exemption prior to the instant request in November 2015.  In response to an email from the head of school dated November 4, 2015 requesting any “previous requests for exemption,” petitioner informed respondent that the student previously attended Jewish day school in Canada and that she had “made no previous requests to opt out of vaccine mandates because there are no vaccine mandates in Canada from which to opt out of.”  Petitioner elaborated that: “[s]ince the time our boys have attended Jewish day schools and camps in New York State, no one has raised the subject of vaccines to me.”  This evidence is consistent with petitioner’s explanation that she developed a religious objection to vaccination in or about November 2010, and the record shows that she has acted in conformity with her beliefs since that time.  The student’s prior history of vaccination, therefore, does not diminish the sincerity of petitioner’s religious beliefs.

Therefore, I conclude that petitioner has met her burden and that the record, as a whole, shows that petitioner objects to immunization based on sincerely held religious beliefs.

THE APPEAL IS SUSTAINED. 

IT IS ORDERED that respondent grant petitioner’s son a religious exemption from the immunization requirement specified in this decision pursuant to Public Health Law §2164.

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