Appeals of STUDENTS WITH DISABILITIES, by their parent, from action of the New York City Department of Education regarding immunization.

Decision No. 17,423

(June 27, 2018)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Neil Giovanatti, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner challenges a determination of the New York City Department of Education (“respondent”) that her children (“the students”) are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  Because these appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

During the 2015-2016 school year, the students were enrolled in respondent’s school district.  Petitioner submitted a form dated September 4, 2015, requesting a religious exemption from immunization on behalf of the students in which she asserted:

I object to any vaccinations or foreign substances injected into my child. My child’s body was made in the image of the Lord and is the temple of God. My family and I believe that injecting unknown substances [into] my child indefinitely compromises the God given health he was born with. The Lord is devine [sic], all powerful, all knowing and our true and only healer.

Petitioner also cited to various Biblical texts and verses to support her claim.

By memorandum dated December 18, 2015, respondent’s health services coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation petitioner submitted was:

[I]nadequate to warrant an exemption and does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.  [The students] [have] all of the required vaccines except for the MMR and Hep. B#3.

The memorandum also informed petitioner of the availability of the district’s internal appeals process, which included an interview with respondent’s health director, and further notified petitioner that if her appeal was denied, she could commence an appeal to the Commissioner pursuant to Education Law §310.

While the precise date is unclear, the record reflects that petitioner met with respondent’s health director in January 2016.  According to respondent, during the interview, petitioner was asked questions about her opposition to immunizations and the religious basis for her beliefs.  In response, petitioner asserted, among other things, that she believed “God is and will continue to heal my children.  I am a Christian ... He heals, he is our doctor” and “I am opposed to any foreign substances entering [the students’] bodies.” According to the health director, petitioner further stated that she and her children do not take medication: “[n]o Tylenol, no Benadryl. Nothing.  We eat clean, organic, kosher, unpasteurized. I clean with lemon oil, vinegar and baking soda.”

By memorandum dated February 11, 2016, the coordinator denied petitioner’s appeal, stating that the documentation submitted by petitioner and the information provided during her interview with the health director did not substantiate a finding that petitioner held a genuine and sincere religious objection to immunization.  These appeals ensued.  Petitioner’s requests for interim relief were granted on April 6, 2016.

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs and seeks a determination that the students are entitled to a religious exemption from the immunization requirements under PHL §2164. 

Respondent contends that petitioner’s objections to immunizations are not based on genuine and sincerely-held religious beliefs.  Respondent further maintains that its determination was rational, not arbitrary or capricious, and proper in all respects.

I must first address the procedural issues. Initially, I note that, petitioner asserts in her petition that she was not notified of the February 11, 2016 denial of her religious exemption requests until she “received a phone call on February 22, 2016 from the school nurse.”  Petitioner further asserts that, on February 22, 2016, the school nurse told her that the students would be excluded from school on the following day.  Petitioner also states that respondent did not give her “a full 30 days to prepare this appeal” as “eleven days passed where [she] was unaware of the appeal denial, leaving [her] with only 19 days to seek legal representation or aid.”[1] Petitioner also complains that respondent’s delay left her with inadequate time to prepare the instant appeals.  I admonish respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in a timely manner and in accordance with New York State Education Department’s (“Department”) guidance and prior Commissioner’s decisions (see e.g. Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).

Petitioner also alleges that respondent discriminated against her on the basis of religion as it has granted religious exemptions to other students at the school who practice other religions.  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 these appeals, I decline to consider such constitutional claims.

Additionally, petitioner submitted a reply in this matter.  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.

Finally, I note that, with her reply, petitioner submits what she identifies as a “more completed version of [her] testimony during [the] interview with [respondent’s director] on January 19, 2016.”  Petitioner offers this exhibit in response to a document submitted with respondent’s answer, which consists of typed questions allegedly posed to petitioner at the meeting as well as the director’s handwritten summaries of petitioner’s responses.  Petitioner does not indicate when she generated this “more completed” version of her responses to the questions posed by the director.  Similarly, although respondent’s document is dated January 29, 2016, there is no evidence as to when the director recorded petitioner’s responses to the questions on the document.  Therefore, while I have accepted and reviewed both documents, I have weighed them accordingly.

Turning to the merits, 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).

Upon careful consideration of the entire record, I find that petitioner has failed to meet her burden of establishing that her opposition to immunization stems from sincerely-held religious beliefs.  Petitioner asserts in her petition:

The practice of vaccination is contrary to my beliefs and would violate our religious principles.  It is through my faith that I believe that our God-given natural capabilities will protect us from illness and disease.  I am a member of the World Missionary Church of God and have been a Christian all my life.  At the age of one, my children suddenly began manifesting many serious childhood illnesses and were identified as developmentally delayed. They displayed chronic acid reflux, ear infections, brain swelling, gastro intestinal disease, apraxia, and delayed speech.  They also had 7 viruses between February 2012 and October 2012.  It was then that I decided to return to church and ask God to protect my children from further illnesses.

According to the record, one factor considered by respondent in denying petitioner’s exemption request was the students’ immunization history. Specifically, respondent contends that petitioner “acknowledges that she provided the [s]tudents with many vaccinations, after she was already a member of the church she now claims prevents her from having the [s]tudents vaccinated.”  I have previously held that the fact that a petitioner’s child was immunized in the past is not necessarily dispositive in determining whether the individual 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 Schools et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16 [2d Cir. 2012], cert. denied, 133 SCt 1997).  Indeed, petitioner explained that “I entered church with my children and saw how they were healed over weeks as I diligently honored and practiced the church’s religious beliefs.”  Furthermore, as previously stated, 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; Appeal of B.S., 56 Ed Dept Rep, Decision No. 17,058; Appeal of D.W. and N.W., id., Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845).  Nevertheless, I find that while petitioner provided sufficient information to establish the basis for her change of heart regarding the students’ immunizations, she has not, as described below, met her burden of proof in establishing that her opposition to immunization stems from sincerely-held religious beliefs or that respondent’s denial of her request was arbitrary and capricious.

In support of her exemption request, petitioner also states:

In our church we learn that we are made in God’s image and are able to heal through him. We learn that God is our eternal healer and that man should not take matters into his own hands. Doing so would interfere with God’s almighty plan and protection for his children....  We must confide in the lord for healing, and not man....  We must not deliberately nor consciously harm another brother and sister.  We must not put another brother or sister in harm’s way.  We must not intentionally expose our brothers and sisters to pain nor harm.

In addition to citing various verses from the Bible, petitioner also claims:

[V]accines are live viruses being injected into a person’s body.  Viruses that are known to be very painful and penetrate your entire being.  I cannot deliberately agree to expose my children to harm and hurt them.

I find that petitioner has made only general statements which are insufficient to establish the religious basis or origin of her beliefs against immunization (see Appeal of K.E., 48 Ed Dept Rep 54, Decision No. 15,792; Appeal of L.P., 46 id. 341, Decision No. 15,527; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Prior Commissioner’s decisions 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 e.g. 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).

While the record reflects that petitioner may sincerely object to immunizations, the crux of the inquiry is whether the reasons for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 FSupp2d 414, aff’d 500 Fed Appx 16 [2d Cir. 2012], cert. denied, 133 SCt 1997).  The record, as a whole, lacks evidence that petitioner holds a sincerely-held religious objection to immunizations and that her objections are primarily medical in nature.  Accordingly, I find that petitioner has failed to demonstrate that respondent’s determination was arbitrary and capricious, or in violation of law.  The appeals, therefore, must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

END OF FILE