Appeal of D.G. and B.L., on behalf of their children T.G. and S.G., from action of Yeshiva of Spring Valley regarding immunization.

Decision No. 17,345

(March 13, 2018)

Boies, Schiller & Flexner LLP, attorneys for respondent, Motty Shulman, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of Yeshiva of Spring Valley (“respondent”) that their children, T.G. and S.G. (“the students”), are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained.

On August 25, 2017, petitioners submitted a signed and notarized “Request for Religious Exemption to Immunization Form – Parent/Guardian Statement” (“form”).  On the form, petitioner requested an immunization exemption pursuant to PHL §2164 for T.G. and S.G. based on their “sincere and genuine religious belief that immunizations are prohibited.”

On August 25, 2017, respondent denied petitioners’ request by marking the appropriate box on the form.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 18, 2017.

Petitioners contend that they are entitled to a religious exemption pursuant to PHL §2164 for T.G. and S.G. because they have genuine and sincere religious beliefs that are contrary to immunization.

Respondent maintains that the denial of petitioners’ request for a religious exemption was proper because petitioners have failed to establish a genuine and sincere religious belief and petitioners admit that they have previously given immunizations to their children.

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 petitioners attempt to raise constitutional issues in this appeal, I decline to consider such constitutional claims.

I must also address a procedural issue.  Petitioner submitted a documented entitled “Answer to the Respondent”, which appears to be a reply.  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 that are not responsive to new material or affirmative defenses set forth in the answer.

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 petitioners qualify for a religious exemption for the students 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 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 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).

The record indicates that, together with the form, petitioners provided respondent with a written explanation of their religious beliefs, including:

The Torah requires us to adhere to many laws, in all aspects of our lives.  The Torah also allows us, to be governed by others, in many aspects of our lives, primarily in finances and laws that are made in order that people can co-exist together in a peaceful society. The Torah, however, does not give the right, for our being itself to be governed by others.  Man has been created in the Image of G-d (Tzelem Elokim), and it is our divine right to protect his Holiness (Kedushah), and it is not incumbent on us to allow others to control this.  By allowing one to immunize themselves with bacterias, beneficial or not, they could profane the Holy Image of G-d.  (Kodosh Zelem Elokim) we have been blessed with. 

Petitioners further state in the petition:

It is our belief, that man has been created in the Image of G-d, as is stated in our Torah, which is a gift from G-d to us, which tells us how to live life and reveals to us deep understanding within life.  Having been created in the image of G-d, we are required to guard and protect this being, in all of its Holiness.  Part of this protection also includes, not allowing ourselves to be injected with foreign bodies, bacterias etc. into us, as not to profane our holiness.

As noted above, respondent denied petitioners’ request without rationale or explanation, merely marking the appropriate box on the form.  In its verified answer, respondent now asserts that petitioners’ objections to immunizations are based “on medical, moral, philosophical, political, scientific and/or sociological objections to immunization.”  Respondent also asserts in its answer that:

Petitioner’s claims are without any basis in Jewish law and tradition.  Indeed, it is well settled in Jewish law and tradition that the biblical obligation to guard one’s health includes taking necessary preventive measures such as immunization. 

Aside from its own assertions, however, respondent fails to identify any specific examples to support its characterization of petitioners’ beliefs.  Nor is there any indication on the record before me that respondent requested any supporting documents or other information from petitioners to further explain or clarify their religious beliefs.

In support of its determination to deny petitioners’ religious exemption request, respondent also states in its answer that “[p]etitioners fail to establish a genuine and sincere belief insofar as [p]etitioners admit to have given immunizations to their children.”  However, 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).

Based on the record before me, I find the weight of the evidence supports petitioners’ contention that thier opposition to immunization stems from religious beliefs.  Respondent’s argument that petitioners’ objection to immunization is not based on Jewish law or tradition is of no merit.  As stated above, it is not necessary for a person to be a member of an organized religion which opposes immunization to claim the exemption.  Contrary to respondent’s assertion, there is nothing in the record which establishes that petitioners’ objection to immunization is based solely on philosophical, scientific, medical or personal preference.  Petitioners’ beliefs and their objection to immunization appear to be principally based upon their interpretation of Biblical passages and concepts and practices found in the Jewish faith and are accordingly religious in nature (see Appeal of L.S., 48 Ed Dept Rep 227, Decision No. 15,845).  

In light of this disposition, I need not consider the parties’ remaining contentions.  However, given the fact that in Appeal of L.S. (48 Ed Dept Rep 227, Decision No. 15,845), respondent also denied a religious exemption request without rationale or explanation, merely making the appropriate box on the for, I admonish respondent to consider all such requests consistent with applicable law and regulation and in accordance with this decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent grant petitioners a religious exemption from the immunization requirements pursuant to Public Health Law §2164(9). 

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