Appeal of A.S., on behalf of his children L.S., J.S. and N.S., from action of the Board of Education of the City School District of the City of Rochester regarding immunization.

Decision No. 17,319

(February 6, 2018)

Timothy Curtin, Esq., Corporation Counsel, attorney for respondent, Cara M. Briggs, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rochester (“respondent”) that his child, L.S. (the “student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.[1]  The appeal must be sustained in part and remanded. 

     According to the record, petitioner submitted a request for a religious exemption to the immunization requirements of PHL §2164 dated on or about November 30, 2015.  Petitioner stated:

The Constitution of the U.S. prohibits our government from interfering with free exercise of religious faith. After thorough research and great soul searching I assert the following in accordance with faith: My faith in the principles handed down from GOD teaches me that in order to have an abundant, healthy physical and spiritual life, we must not blemish our bodies or souls with things that are not in accordance with the many scriptures that do guide us in that direction.

Petitioner further stated:

There is no reference to be found that supports injecting our bodies with viruses, bacteria or poisons known to cause death [and] injury to prevent diseases or illnesses.  I have always been opposed to the injection of all immunizations most particularly those that include cell-lines derived from aborted fetal tissue, believing that murder is sinful, as well as those with added foreign proteins not fit to be consumed by man according to my faith (emphasis in original).

By letter dated December 4, 2015, respondent’s counsel notified petitioner that his exemption request was denied, stating:

Based on my review, I am denying your request for exemption from immunization. New York State Public Health Law §2164 requires that your child receive immunizations in order to attend public school.

By letter dated January 25, 2016, the principal informed petitioner that his daughter L.S. would be excluded from school “until such time as you provide proof that she has been immunized in accordance with the requirements of Public Health Law 2164.” Petitioner was further informed that he could commence an appeal to the Commissioner of Education pursuant to Education Law §310 within thirty days of respondent’s decision. This appeal ensued.  Petitioner’s request for interim relief was denied on February 9, 2016.

Petitioner asserts that he has genuine and sincere religious beliefs that are contrary to immunization and seeks a religious exemption from immunization pursuant to PHL §2164.

Respondent maintains that the denial of petitioner’s request for a religious exemption was rational, not arbitrary or capricious, and in all respects proper.

I must first address the procedural issues.  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, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 petitioner attempts to raise constitutional issues in regard to this appeal, I decline to consider such claims.

Turning to the merits, 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 petitioner qualifies for a religious exemption for the student 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).  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 his or her child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of his or her 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 consideration of the entire record, I find that the appeal must be remanded based upon deficiencies with respondent’s review process which is, under the circumstances, deprived petitioner of fair consideration of his immunization request.  Guidance issued by the New York State Education Department (“SED”) to school districts.

In interpreting requirements of 10 NYCRR §66-1.3(d), guidance issued by the New York State Education Department (“SED”) states that “the building principal ... holds responsibility for reviewing each request form and for communicating in writing with the parent/guardian regarding the request’s approval or denial” and the principal “cannot assign these duties to the designee.”  SED’s guidance also states that if a request for a religious exemption is denied, “the notification letter must contain the specific reason(s) for the denial.”

Here, the record indicates that petitioner’s exemption request was considered and denied by the district’s attorney in a letter which provided no rationale for such denial.  Although the principal avers that he discussed the subject of the student’s lack of immunizations with petitioner “during the month of November,” it appears from the record that such discussion(s) occurred before petitioner submitted his religious exemption request.  While the principal also avers that he informed petitioner in a letter dated January 25, 2016 that the student would be excluded from school “until such time as you provide proof that she has been immunized in accordance with the requirements of Public Health Law 2164,” it was counsel for respondent who considered and made the final determination to deny petitioner’s exemption request in a December 4, 2015 letter which lacked any rationale or explanation for the denial.  The requirement that a principal of a public school determine whether a student is entitled to an exemption from PHL §2164 derives from 10 NYCRR §66-1.3, which refers to a “principal or person in charge of a school” as the individual responsible for considering such requests.

With specific respect to the fact that it was respondent’s counsel who considered and denied petitioner’s request, the Commissioner has previously noted that use of an attorney to undertake the preliminary investigation and communication with a petitioner regarding a religious exemption request may be inappropriate because “it sets up an adversarial posture with parents and may result in unnecessary disputes” (Appeal of A.C., 50 Ed Dept Rep, Decision No. 16,175).  In Appeal of A.C. (50 Ed Dept Rep, Decision No. 16,175), however, the Commissioner found that, consistent with SED’s guidance, the principal reviewed petitioner’s request, including the information obtained at a meeting with petitioner, made the final decision denying petitioner’s exemption request and sent the written notice explaining the reasons for his denial thereof.  Based on those facts, the Commissioner could not conclude that respondent violated 10 NYCRR §66-1.3(d) or acted inconsistently with SED’s guidance by having the preliminary investigation and communication with petitioner conducted by someone other than the principal, in that case the school district attorney.

Unlike the circumstances presented in Appeal of A.C. (50 Ed Dept Rep, Decision No. 16,175), the record in this case indicates that respondent’s attorney both considered and issued the final determination to deny petitioner’s religious exemption request, which contained no reasoning or explanation.  Indeed, respondent’s counsel avers that she made the final determination in this matter “[b]ased on the information provided in [petitioner’s] request for exemption, taken together with the information provided to me by [the principal and the school nurse].”  Moreover, the principal avers that, when he “received” petitioner’s request for a religious exemption on November 30, 2015, he “forwarded the request to the Law Department for review” and thereafter “received a copy of the letter that was sent from the Department of Law” denying petitioner’s request.  Under these circumstances, I will remand the matter to respondent so that the building principal may render a determination as to petitioner’s request and explain his reasoning in accordance with 10 NYCRR §66-1.3(d) and consistent with SED’s guidance (see Appeal of J.W.R. and E.R., 55 Ed Dept Rep, Decision No. 16,899).[2]  I remind respondent that, as noted above, 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).  

     THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

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

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