Appeal of T.R., on behalf of his son T.R., from action of the New York City Department of Education regarding immunization.

Decision No. 17,329

(February 27, 2018)

Giulia Miller, Esq., attorney for petitioner

Zachary W. Carter, Corporation Counsel, attorney for respondent, Ian William Forster, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE” or “respondent”) that his child, T.R. (the “student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained.

During the 2016-2017 school year, the student attended first grade in respondent’s district.  Petitioner has two other children, an older daughter who attended second grade and a younger daughter who was below the age of mandatory school attendance during the 2016-2017 school year.  By letter dated January 6, 2017,[1] petitioner requested a religious exemption on behalf of the student.  In the letter, petitioner asserted that he has always been a person of faith by virtue of his upbringing as a member of the evangelical “Church of Christ.”  As a child, he regularly attended church on Sundays, Tuesdays, and Thursdays, and engaged in door-to-door proselytizing on Saturdays with family. 

In his exemption request, petitioner asserted that “[f]aith in the Lord ha[s] always been extremely important part of my life” and that he was blessed with miracles throughout his life that “have strengthen[ed] my personal relationship with Jesus, The Holy Spirit and my interpretation of the Holy Bible which shaped my view on vaccinations.”  To illustrate, petitioner described one time he was electrocuted while walking near a construction site, when a live high voltage electrical cable fell on him.  He thought he was dead and, according to petitioner:

asked the Lord to rescue me.  Then, the cable fel[l] off and I was saved.  The construction workers and electricians at the site couldn’t understand how I was OK after being hit by such high voltage.  They wanted to call an ambulance.  I asked for water and went straight to pray and thank the Lord for his miracle. 

Another time, petitioner was drowning in a lake.  According to petitioner:

I kept calm[].  I was calling the name of Jesus in my mind until someone pulled me out of the water.  God has been a part of my life since I was a child.  I am still learning the Lord’s teachings even now as a grown man.  With each day and with each new life experience my faith is tested and strengthened.

According to petitioner, “[t]hose that accept and belie[ve] in Jesus Christ are forgiven of their sins.  They have to live according to God’s laws.  They have happy lives since they are cleaned of their sin and try to live according to their creator.”  Further, “[a]t church, the preachers always emphasize that we must obey the word of God that is in the Bible.  They have given me countless examples ... of all the evil things that happen to people when they disobey God.”

In the exemption request letter, petitioner acknowledged that he had previously vaccinated his children.  Specifically, the student had received all required vaccinations except for DPT, Polio, MMR, and varicella.  However, petitioner described a turning point in August 2016 when he realized “that being vaccinated was adverse to the teachings of the Bible and the Holy Spirit.”  Specifically, petitioner learned in the news that a Catholic father had refused to vaccinate his child based on his religious beliefs and had been denied a religious exemption by respondent herein.  This prompted petitioner to conduct his own research and speak with other Christians on the subject of vaccines.  According to petitioner:

the arguments that are made by Christians who refuse vaccines swayed me decisively.  Their arguments are more aligned with the Christian faith and my devout sensibilities.  I came to the conclusion that vaccines violate my religious beliefs.... After doing my research I concluded that vaccines do not conform to Christian teaching and principals [sic] and I must not have anything to do with them.

In his letter, petitioner explained that he opposes vaccines for two main reasons.  First, blood is sacred and petitioner was “appall[ed]” to learn that “[v]accines put many types of biological material into blood and body*.”  According to petitioner, “[v]accines injected into the blood [or taken orally] is a violation of God’s law because it violates the sacredness of the blood.”  Petitioner stated, “[w]e have to keep the blood pure, and thus the soul pure[;] the Bible admonishes against mixing human blood with animal blood, diluting blood and besmirching the purity of blood in any way.  In particular, Luke 13:1-5 warns that those who mix human blood with the blood of sacrificed animals are offending God.”  Petitioner asserted that “[o]ur bodies are a precious gift from God to be kept holy in accordance with His will.  By injecting foreign biological matter into the bloodstream, we defile our blood and our bodies become unholy.”  Further, he explained as follows:

By allowing unclean things to enter our blood and bodies, we are literally driving out the spirit of the Lord.  That can only mean[] that vaccination is inconsistent with my religious beliefs and that it denies us the blessings promised by the Word of Wisdom.... My interpretation of the scripture includes living by a strict moral code, and doing everything to protect and respect our bodies as gifts from God, including preventing any unclean thing from entering our temple. 

Second, petitioner asserted that, “[v]accinating my children would be a betrayal of my professed faith.... I cannot support the idea that mankind’s achievements in science take precedent [sic] over my faith in God’s plan for this world and my children.”  He explained that, “now that I understand the sacredness of blood and how it has to be kept clean, I cannot let my children be vaccinated.  A true Christian with faith that has come to understand this can never let that happen.”  He further explained that, “vaccines appear to have become our individual ‘salvation’, minimizing God’s influence over trial, tribulation, disease and mortality” and “are way more ambitious than tending to a wound or comforting one in pain.”  He further stated as follows:

The Lord is in control of my li[f]e.  He knows best.  When we are true disciples of the Lord, we surrender ourselves to Him.  We have our hopes on Him not on anybody else.  ‘Yea, though I walk through the valley of the shadow of death, I will fear no evil; For You are with me; Your rod and Your staff, they comfort me’ (Psalm 23:4).  I cannot give up the sacredness of the blood for the promise of some vague material benefit.

1 Peter 1:6,7 ‘you may have to suffer for a short time in various trials. 7 Such trials show the proven character of your faith, which is much more valuable than gold’.  While we are alive, we are tested like gold to see if we are true Christian.  We will go through trials and tribulation [sic].  We have to receive these tribulations and difficult moments happily (emphasis in original).

By memorandum dated February 16, 2017, respondent’s health service coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation he 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.  Specifically, while you cited passages of scriptures ... you have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.  [The student] has all of the required vaccines except for the DPT#5, Polio#4, MMR#2 and varicella#2.  [The student’s sister’s] vaccine record is complete.  You have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.

Petitioner appealed this determination by requesting an interview with respondent’s health director (“director”).  Petitioner met with the director on March 27, 2017.  The record indicates that, in response to the director’s questions, petitioner largely repeated the contents of his original exemption request.  Specifically, he stated that his request for a religious exemption was based on his understanding of the Bible that blood is sacred and cannot be mixed, and that immunizations “go in the blood and make blood unholy.” 

By memorandum dated March 30, 2017, the coordinator denied petitioner’s appeal, stating as follows:

The 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.  You have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.

[The student] has all of the required vaccines except for DPT#5, Polio#4, MMR#2 and varicella#2.  [The student’s older sibling’s] vaccination record is complete.  You have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.

This appeal ensued.  Petitioner’s request for interim relief was granted on May 22, 2017.

Petitioner contends that his objections to immunizations are based on genuine and sincerely held religious beliefs and seeks a determination that the student is entitled to a religious exemption from the immunization requirements of PHL §2164.  Petitioner also claims that respondent failed to provide him with specific reasons for the denial of his request, that respondent’s appeal process is flawed, and that respondent’s denial of his exemption request was arbitrary and capricious.  Petitioner also appears to assert that respondent’s actions violated his due process rights.

Respondent contends that petitioner failed to specify the precise nature and origin of his beliefs sufficient to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper. 

PHL §2164(6) prohibits a school from admitting a child without a certificate or other acceptable evidence of the child's immunization against certain diseases.  However, §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 requires 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 District, 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 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).

Initially, I note that 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 constitutional claims.

Petitioner first asserts that respondent failed to provide a sufficient explanation of the reasons for denying his request for a religious exemption.  To support his claim, petitioner relies on guidance from the New York State Education Department (“SED”), 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.”  As described above, both the February 16, 2017 and the March 30, 2017 memoranda essentially stated that petitioner failed to specify the precise nature and origin of his beliefs sufficient to demonstrate a sincerely held religious belief contrary to immunization.  Respondent asserts in its answer that it issued its memoranda “in full compliance with 10 NYCRR §66-1.3(d) and the March 2006 guidance memorandum” issued by SED.  For purposes of this appeal, I find that respondent has articulated a rationale for its determination, to which petitioner has had ample opportunity to respond and has indeed done so.  Respondent acknowledged petitioner’s citation of scripture but concluded that petitioner had not demonstrated the “precise nature and origin” of his beliefs. 

I also find no merit to petitioner’s contention that respondent failed to request additional supporting documents prior to rendering its determination.  Respondent is responsible for rendering a final determination as to a religious exemption request, which includes the ability to seek supporting documents, if necessary (10 NYCRR §66-1.3[d]).  As respondent correctly notes, 10 NYCRR §66-1.3(d) gives a school the option to request additional documents but does not mandate that such a request be made when the school does not have additional questions regarding the sincerity of a parent’s beliefs.  Respondent further explains in its verified answer that the purpose of the interview is to “provide the Health Director with the opportunity to speak to the requesting parent one-on-one to gain a better understanding of the parent’s opposition to immunization.   The parent is also given an opportunity to offer further evidence to support the request.”  Although petitioner asserts in his reply that the interview consisted only of “pro-forma questions” and that it was “not [his] responsibility to guess or imagine what may constitute ‘further evidence to support the request,’” upon review of the record, I find that petitioner has not carried his burden of establishing that respondent erred in this regard.

Turning to the merits, I find that petitioner has sufficiently demonstrated a genuine and sincere religious belief within the meaning of PHL §2164. 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), here petitioner uses Biblical verses and passages to explain the precise nature and origin of his beliefs as described in his original exemption request.  His beliefs appear to be based on his own interpretation of Biblical texts in accordance with his upbringing and life experiences, are religious in nature, consistent, and straightforward.  Aside from its own conclusory statements and assertions, respondent fails to identify any specific examples to support its characterization of petitioner’s beliefs. 

Respondent disputes that petitioner specified the precise nature and origin of his beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.  According to respondent, petitioner’s objection was developed only after he read a newspaper article which informed him of the possibility of an exemption as a legal option.  However, as petitioner explains in his reply, “[t]he information gleaned by Petitioner was novel religious information for Petitioner,” i.e., “that the Christian [B]ible can be reasonably construed to prohibit vaccination....”  Petitioner explains that this awareness prompted him to speak to other Christians about vaccines and from that, he “came to the conclusion that vaccines violate [his] religious beliefs.” 

To further support his religious exemption request, petitioner states that he objects to specific ingredients contained in vaccines.  Petitioner asserts that, based on a chart from the Centers for Disease Control and Prevention (“CDC”) which is attached as an exhibit to the petition, the vaccines to which he objects on religious grounds contain “some form of animal by product or human cells.”  Specifically, as petitioner notes, the following ingredients are listed on the CDC printout as being contained in the required vaccines: “DTaP-IPV/Hib: human diploid cells and calf serum; Varicella: fetal bovine serum, human diploid cell cultures, embryonic guinea pig cell cultures and human embryonic lung cultures.”[2]   

Respondent submits an affidavit from Jennifer Rosen, M.D., Director of Epidemiology and Surveillance within the New York City Department of Health and Mental Hygiene’s Bureau of Immunizations (“Rosen Affidavit”) which purports to respond to petitioner’s contentions in this regard, and states, among other things, that:

[M]any of the products used during the manufacturing of vaccines, in those instances when it is still present in the final product, would only remain in minute or undetectable amounts.... [O]ur medical staff often consults with vaccine manufacturers to confirm what is and is not used in the manufacturing process, and what may or may not remain in the actual finished product. 

Therefore, a mere listing of ingredients from [the CDC] website ... is often non-contextual and does not reflect the actual manufacturing process....

To the extent that respondent is attempting to use the Rosen affidavit to rebut the linkage between the required vaccines and the biological materials contained therein as posted on the CDC website, it has failed to do so.  While the Rosen affidavit appears to explain that, at most, only “minute” or “undetectable” amounts of the materials to which petitioner objects may be present in vaccines, she does not aver that no nexus exists.  On this record, respondent has not rebutted the evidence presented by petitioner that such a linkage does exist.  Thus, I find that the record in this proceeding contains evidence of a linkage between the vaccines at issue and the use of materials to which petitioner objects on religious grounds (see Appeal of B.S., 56 Ed Dept Rep, Decision No. 17,058; Appeal of B.O-G., 51 id., Decision No. 16,294).

Additionally, respondent argues that petitioner “waited for the entire first half of the 2016-2017 school year to request a religious exemption, even though he did not allow [the student] to be vaccinated after August 2016.”  However, as petitioner explains, it was unnecessary for him to submit such a request until respondent brought it to his attention that the student was due for additional immunizations.  Therefore, I find respondent’s argument in this regard to be without merit.

The record indicates that one factor considered by respondent in denying petitioner’s exemption request was the student’s (and his older sibling’s) immunization history.  I have previously held that 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, petitioner explained that his critical turning point on vaccines occurred after  the student’s older sibling had already received all of her required vaccinations, and that, since August 2016, none of his children have received any vaccines.  Accordingly, in light of the fact that petitioner changed his mind concerning vaccination, the student’s (and his sibling’s) prior immunization history does not negate the sincerity of petitioner’s religious beliefs.

Similarly, petitioner’s acknowledgement that he would seek medical intervention “except for blood products” is not fatal to his claim.  Petitioner further elaborates that he would not agree to even a reactive medical intervention that did consist of blood factors.  I have previously held that the fact that petitioner 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). 

Based on the record before me, I conclude that the weight of the evidence supports petitioner’s contention that his opposition to the required vaccines stems from sincerely held religious beliefs.  Petitioner articulates and demonstrates a sincerely held religious belief, and the record does not indicate that his position is based on philosophical, scientific, medical or personal preference. 

I have reviewed respondent’s remaining objections and find them to be without merit.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED. 

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

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