Appeal of M.B. and W.D., on behalf of their children J.D. and J.D., from action of the New York City Department of Education regarding immunization.

Decision No. 17,425

(June 28, 2018)

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

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Kate McMahon, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their children, J.D. and J.D. (“the students”), are not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2015-2016 school year, petitioners’ children attended school in respondent’s district.  Petitioners’ older son attended fifth grade and petitioners’ younger son attended kindergarten. In a letter dated February 6, 2016, petitioners sought a religious exemption from immunization pursuant to PHL §2164 for the students, explaining how their familial relationships, Jewish and Catholic upbringing and faith played an important role in their lives.  Petitioners asserted that petitioner M.B.’s “parents encouraged a personal relationship with God and encouraged religious introspection” and “encouraged [her] to find [her] own language with which to speak to God and carry out his word and live [her] beliefs.”  Petitioners also stated:

Our objections have nothing to do with secular, philosophical or medical objections....  We realize that vaccines are safe and effective, but in order to remain true to our conscience and our idea of faith, we cannot immunize our kids.

Petitioner M.B. further explained that after the death of her parents, she began to look at everything from a “religious perspective” and after further research she found:

Not only are some of the vaccines created using human diploid cells from voluntarily aborted human fetuses, but they all contain foreign ingredients that corrupt the blood.  These cells and other ingredients are impure, unholy and morally tainted [emphasis omitted].

Petitioners maintained that “[a]bortion is the gravest of sins” and that they are “pro-life” and “do not support abortion.”  Petitioners explained that “[t]here is just no such thing as a morally acceptable vaccination because, however long ago, a child was sacrificed for the manufacuture of these life-saving medicines.”  They also stated:

[V]accines assume there is something wrong with the creation of God.  God has created perfection in the human body as it was created in His own image.  God made us in His own image.  By accepting vaccines, we are denying this perfection and this contradicts our faith in Him.

In support of their religious exemption request, petitioners cited various Biblical verses and texts and explained their understanding and interpretation of each verse and text.

By memorandum dated March 29, 2016, respondent’s health service coordinator (“coordinator”) determined that “there [was] insufficient documentation to determine whether a religious exemption from immunization is warranted” and requested that petitioners provide additional information and documentation within ten days.  By letter dated April 15, 2016, petitioners responded and further explained their beliefs as outlined in their February 6, 2016 exemption request. 

By memorandum dated April 20, 2016, respondent denied petitioners’ exemption request, stating that petitioners’ documentation was inadequate to warrant an exemption and did not substantiate that petitioners held “genuine and sincere religious beliefs which are contrary to immunization.”  Petitioners were further informed that their younger son “ha[d] all of the required vaccines except for Dtap#4, Polio#3, MMR, Hep#3 and varicella,” and that their older son’s immunization record was “complete.”  The coordinator also informed petitioners that they could appeal the determination by arranging an interview with respondent’s health director (“health director”). 

Petitioners met with the health director on May 27, 2016.  The record indicates that, in response to the health director’s questions about their sincerely-held religious beliefs, petitioners largely repeated the information and contentions contained in their original exemption request.

By memorandum dated August 8, 2016, the coordinator denied petitioners’ appeal, stating:

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.

This appeal ensued.  Petitioners’ request for interim relief was granted on September 7, 2016.

Petitioners contend that their objections to immunizations are based on genuine and sincerely-held religious beliefs and seek a determination that the students are entitled to a religious exemption from the immunization requirements under PHL §2164.  Petitioners also claim that respondent failed to provide them with specific reasons for the denial of their request, that the appeal process is flawed and that the denial was arbitrary and capricious.  Petitioners also appear to assert that respondent’s actions violate their due process rights.

Respondent maintains that the denial of petitioners’ request for a religious exemption was proper because petitioners’ objections to immunizations are not based on genuinely and sincerely-held religious beliefs, but are instead based on medical, moral, philosophical, political, scientific and/or sociological objections to immunization.  Respondent further asserts that its determination was rational, not arbitrary or capricious, and in all respects proper.

I must first address several procedural issues.  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.

Petitioners 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.

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 petitioners qualify for a religious exemption 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 FSupp 2d 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 FSupp 2d 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 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).

First, petitioners assert that respondent failed to provide a sufficient explanation of the reasons for denying their request for a religious exemption.  In support of their claim, petitioners rely on guidance from the New York State Education Department (“Department”), 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 April 20, 2016 and the August 8, 2016 memoranda essentially state that petitioners failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  Respondent states in its answer that it found “the record as a whole did not substantiate a finding that petitioner[s] held a genuine and sincere religious belief contrary to immunizations.”  The coordinator elaborates in her affidavit that she found there was “insufficient documentation to determine whether a religious exemption from immunization was warranted” and that she found petitioners’ assertions “vague and conclusory.”  Although respondent’s reasoning was minimal, I nevertheless find that respondent has articulated a sufficient rationale for its determination for purposes of this appeal. Further, petitioners have had ample opportunity to respond to respondent’s reasons for its denial in this appeal and have indeed done so (see Appeal of a Student With a Disability, 57 Ed Dept Rep, Decision No. 17,169).  Accordingly, I will not sustain the appeal on this ground.  However, I admonish respondent to provide parents with appropriate written communications articulating the specific reasons for the denial of a religious exemption in accordance with the Department’s guidance.

I also find no merit to petitioners’ contention that respondent improperly requested that petitioners submit additional information.  PHL §2164 and its implementing regulations state that respondent must make the ultimate determination on whether to grant a religious exemption.  That determination necessarily includes the ability to seek additional information, if deemed necessary (10 NYCRR §66-1.3[d]).  Upon review of the record, I find that it was appropriate for respondent to request additional information and supporting documentation from petitioners in this instance to ascertain petitioners’ religious beliefs.

Respondent argues that petitioners’ objections are not based on sincere and genuine religious beliefs because petitioners’ social media and internet activity support a finding that petitioner M.B. subscribes to various “conspiracy theories” which are secular in nature.  Respondent admits that it did not consider this information when it evaluated the exemption request.  Therefore, I decline to consider this information as it was not considered by school district officials at the local level.  In any event, I note that none of the social media content, blogs, posts or websites which respondent has identified appear to demonstrate, in and of themselves, that petitioners’ objections are not based on sincerely-held religious beliefs.

The record indicates that one factor considered by respondent in denying petitioners’ exemption request was the students’ prior 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 M.B. explained that their critical turning point on vaccines occurred after the death of her parents when she sought “guidance and strength from God” and began to look at everything from a “religious perspective.”  Petitioners explain that it was during this time that petitioner M.B. had a conversation with her cousin about vaccinations and was informed about the contents of vaccines.  Accordingly, the students’ prior immunization history and the fact that petitioners changed their minds concerning vaccination does not evince a lack of sincerity or diminish the sincerity of petitioners’ religious beliefs. 

Further, petitioners acknowledge that they would condone medical intervention “on a sick body, or a body in crisis.”  They also elaborate that they believe “[s]cripture reveals to us that medical intercession on an already healthy body shows a complete lack of faith in God’s judgment and healing powers” and that they believe “[p]ro-active medical treatment is not acceptable, but reactive is [ok].” Prior Commissioner’s decisions have held that the fact that petitioners 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). 

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 not sufficient 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, however, petitioners use Biblical verses and passages to explain the precise nature and origin of their beliefs as described in their original exemption request and additional documentation.  Their beliefs appear to be based on their own interpretation of Biblical texts in accordance with their upbringing and life experiences, are religious in nature, consistent, and straightforward.  Further, there is no evidence in the record that petitioners’ position is not religious in nature or based on moral, philosophical, scientific, medical or personal preferences.  Aside from its own conclusory statements and assertions, respondent fails to identify any specific examples to support its characterization of petitioners’ beliefs.

However, because petitioners have not submitted evidence sufficient to support their claim of a linkage between the use of certain materials in vaccines to which they object, they have failed to meet their burden of establishing that respondent’s determination was arbitrary, capricious or in violation of law.  Petitioners’ objections to vaccination are grounded in their opposition to abortion and, by extension, fetal tissue obtained from abortions.  Petitioners explained in their exemption request that “[a]bortion is the gravest of sins” and that there is “no such thing as a morally acceptable vaccination because ... a child was sacrificed for the manufacture of these life-saving medicines.”  Although these objections appear to be religious in nature and are based upon their interpretation of Bible teachings and doctrines as well as their religious upbringing (see Appeal of M.C., 55 Ed Dept Rep, Decision No. 16,805; Appeal of D.H., 52 id., Decision No. 16,425; Appeal of B.O-G., 51 id., Decision No. 16,294), other than their conclusory statements, petitioners have failed to demonstrate which vaccines, if any, contain such ingredients or provide any documentation which attempts to establish a nexus between the students’ required vaccines and their claimed religious objection to the vaccines or their ingredients (cf. Appeal of N.C., 55 Ed Dept Rep, Decision No. 16,805; Appeal of B.O-G., 51 id., Decision No. 16,294).[1]  Therefore, on the record before me, I find that petitioners have failed to demonstrate that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious, or in violation of law (see Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670).  The appeal, therefore, must be dismissed.

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

THE APPEAL IS DISMISSED.

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