Appeal of N.A., on behalf of her daughter A.A., from action of the Board of Education of the New York City Department of Education regarding immunization.

Decision No. 17,458

(July 20, 2018)

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 (“respondent”) that her daughter, A.A. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be sustained.

The student attended respondent’s district during the 2016-2017 school year.  By letter dated December 11, 2016, petitioner sought a religious exemption from immunization pursuant to PHL §2164.

By memorandum dated January 24, 2017, the health service coordinator (“coordinator”) in respondent’s Office of School Health denied petitioner’s request, stating that “the documentation you submitted is 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, the memorandum stated that petitioner had “failed to provide documentation which explain[ed] why prior vaccinations did not violate [her] religious beliefs.”  Further, the memorandum indicated that “[the student] has all of the required vaccines, except for DPT#5, Polio#4, MMR#2 and varicella#2.”  The memorandum provided information about how to appeal the determination.  Petitioner appealed the determination by requesting an interview with one of respondent’s health services directors.

Petitioner met with one of respondent’s health services directors (“director”) on February 8, 2017.  The record contains a copy of the questions posed to petitioner during this meeting, as well as petitioner’s hand-written responses to the questions.

By memorandum dated March 6, 2017, the coordinator denied petitioner’s appeal, stating that 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,” and that “[y]ou have not specified the precise nature and origin of your beliefs sufficient to demonstrate a sincere and genuine religious belief contrary to vaccinations.”[1]  This appeal ensued.  Petitioner’s request for interim relief was granted on April 12, 2017.

Petitioner contends that her 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 under PHL §2164.

Respondent contends that petitioner’s claimed objections to immunizations are not based on genuine and sincerely-held religious beliefs, but, rather, are secular in nature and based upon general concerns over toxins and bodily health.  Respondent also argues that petitioner had previously vaccinated the student and has not adequately explained her changed views.  Respondent also contests petitioner’s claims that the vaccinations the student requires contain animal byproducts and aborted fetal tissue.  Respondent further asserts 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 a petitioner qualifies for a religious exemption requires careful consideration of two factors: whether his or her 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 the parent/guardian’s statements and may consider the parent/guardian’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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Upon review of the entire record, I conclude that petitioner has sufficiently demonstrated that she holds sincerely-held religious beliefs opposed to immunization.  In her petition, petitioner explains that although she was raised in a society “where any religion was persecuted ... little by little freedom of religion started developing” and she began to attend a Christian church and study the Bible in her home country in the early 1990s.  Petitioner asserts that she “was young and didn’t understand much of what [she] was reading” at the time.  Nevertheless, petitioner states that she “always felt [an] unexplainable connection with God” during her studies. 

Soon after October 12, 2014, the date when the student received her last immunization, petitioner and the student returned to petitioner’s home country so that the student could meet petitioner’s mother, the student’s grandmother, for the first time.  During this trip, the student was baptized in the Church of the Holy Great Prince Vladimir.  Petitioner attaches a copy of the baptism certificate with her petition.  The student has not received immunizations since her baptism, which petitioner asserts that she takes “very seriously.”

A few months after returning to the United States, petitioner and the student began attending a church where, as petitioner explains, she “felt [at] home” and states that she was baptized in this church in 2015.  Petitioner further explains that she has “been receiving answers to all my questions since I [became] a member of this Church.”  To the extent respondent alleges that petitioner has failed to explain her change of heart regarding immunizations, I find that the above narrative satisfies petitioner’s burden of proof. 

I also find that petitioner has sufficiently proven a genuine and sincerely-held religious opposition to immunization.  Although 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), in the instant appeal, in addition to citing to Biblical texts, petitioner further explains and specifies the precise nature and origin of her beliefs in her own words.

In the petition, petitioner articulates a consistent and straightforward explanation of her beliefs, which are grounded in Christianity.  Petitioner explains, with reference to Biblical sources, as well as her own interpretation of each Biblical verse, her belief in the perfection of the universe and the human body.  Petitioner further explains her belief in the God-given duty to take care of our bodies and “keep them pure,” as well as God’s reciprocal promise to protect those who do so.  She also explains her belief that “[i]f we interfere with His plan for our lives by foreign means and substances, we believe God will not protect us.” 

I am unpersuaded by respondent’s contention that petitioner’s professed beliefs are secular or medical in nature.  Although petitioner’s initial request indicated that “the injection of toxic chemicals and foreign proteins into the bloodstream is a violation of God’s directive to keep the body/temple holy and free from impurities,” it also explained petitioner’s objection to mixing the blood of man with the blood of animals and aborted fetal tissue.  On this record, petitioner has articulated a consistent and straightforward religious opposition to vaccination.  Thus, I find that petitioner’s assertion that vaccines contain “toxic chemicals and foreign proteins” flows from her sincerely-held religious opposition to vaccination, and the mere fact that she referenced vaccine ingredients in this manner does not render her opposition secular or health-based.  Therefore, I find that petitioner has met her burden of proving a sincerely-held religious opposition to immunization.

Respondent also contends that the petition must be dismissed due to inconsistencies in petitioner’s beliefs regarding medical interventions.  Specifically, respondent argues that petitioner’s assertion in the petition that humans were “created as perfect as God Himself” cannot be squared with her statement during the interview that she believes “medical help is a must” in “certain circumstances.”  I do not find that petitioner’s statement that she would allow medical intervention in “certain circumstances” to be inconsistent with her beliefs as expressed in the petition.  Moreover, respondent has taken this quote out of context, as petitioner further explained in her response that: “[w]e are responsible for our own health, and the health of our children, if medical treatment ... does not conflict with our faith or religion.”  In any event, I note that 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).   

Petitioner further explains how the vaccines the student is due to receive violate Biblical prohibitions on mixing human and animal blood and the murder of babies and children.  According to petitioner, “[t]he Bible has a lot of statements about blood and has 446 references to it in both, Old Testament and New Testament.  Humans are not to cross their blood with the blood of animals.  Those who do so are sinners.”  Further, petitioner points to many verses of the Bible indicating that a child in the womb, and even before conception, is “capable of understanding that he is alive and is destined to live his life, given by God.” 

After discussing various Biblical examples which condemn the commingling of animal and human blood and murder of babies and children, petitioner identifies the specific objectionable ingredients contained within each vaccine the student requires.  These ingredients include “a continuous line of monkey kidney cells,” “bovine calf serum,” “chick embryo cell culture, “human albumin,” and MRC-5 and WI-38, which are “diploid human cell culture line[s] composed of fibroblasts derived from [the] lung tissue of an [sic] 14 week old aborted baby” and “from [a] 16-week (20 cm long) aborted baby,” respectively, among other things.  Petitioner identifies the source of this information as a website which directly links to information published by the Food and Drug Administration (“FDA”).[2]

Respondent denies petitioner’s assertions with respect to these ingredients in its answer but admits that petitioner “purports to list components of various vaccines.”  Respondent also 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 a website ... is often non-contextual and does not reflect the actual manufacturing process....

[T]here are alternative polio vaccines for which human embryo cell lines are not used in the production.  All other school-required vaccines (DTP, Tdap, hepatitis B, Hib, PCV and MenACWY) are available in presentations for which human embryo cell lines are not used [emphasis in original].

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 identified by the Food and Drug Administration, it has failed to do so.  While the Rosen affidavit attempts 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.  Moreover, to the extent the Rosen affidavit asserts that the required vaccines are available in forms that do not contain “human embryo cell lines,” petitioner objects to such vaccines on the grounds that they also contain various animal materials, as described above.  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 T.R., 57 Ed Dept Rep, Decision No. 17,329; Appeal of B.S., 56 id., Decision No. 17,058; Appeal of B.O-G., 51 id., Decision No. 16,294).

Based on the record before me, I conclude that the weight of the evidence supports petitioner’s contention that her opposition to the required vaccines stems from sincerely-held religious beliefs and that such vaccines contain the materials to which petitioner objects on religious grounds.  Petitioner articulates and demonstrates sincerely-held religious beliefs, and the record does not indicate that her 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 daughter a religious exemption from the immunization requirement as specified in this decision pursuant to Public Health Law §2164.

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