Appeal of H.G., on behalf of her son A.G., from action of the New York City Department of Education regarding immunization.

Decision No. 17,524

(October 16, 2018)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Lesley Berson Mbaye, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“DOE” or “respondent”) that her son, A.G. (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

During the 2016-2017 school year, the student was enrolled in respondent’s school district.  The record indicates that, on or about December 15, 2016, petitioner submitted a letter seeking a religious exemption from immunization on behalf of the student.  Petitioner stated, among other things, that “my child’s body is the temple of God.  Our family’s personal religious beliefs prohibit the injection of foreign substances into our bodies.  To inject into our child any substance which would alter the state into which he was born would be to criticize our Lord and question His divine omnipotence” and “[o]ur personal religious beliefs include our obedience to God’s law, the Holy Bible, and we believe that we are responsible before God for the life and safety of our child, created by God.” In support of her religious exemption request, petitioner also cited two Biblical verses and texts.

By memorandum dated February 21, 2017, a copy of which is contained in the record, respondent’s health services coordinator (“coordinator”) denied petitioner’s request for a religious exemption, determining that the documentation petitioner 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 and [sic] 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 DTP#3, Polio#3 and HepB#3.  You have failed to provide documentation which explains why prior vaccinations did not violate your religious beliefs.

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

According to petitioner, “on or about March 24, 2017,” respondent provided her with “a most cursory denial letter” from the coordinator.  Petitioner claims that she “had not received any other correspondence from Respondent nor from any other school official asking for any further documentation as it is alleged she was lacking.”  The record contains a copy of the March 24 letter, which informed petitioner that the February 21, 2017 memorandum “was sent informing you that your request was denied,” reiterated the explanation for the denial provided therein, and informed petitioner of the district’s internal appeals process.

The record indicates that, thereafter, respondent provided petitioner with a written series of questions inquiring about her opposition to immunizations and the religious basis for her beliefs.  In a written response dated April 24, 2017, petitioner asserted, among other things, that “it is against my religious belief to inject the body with foreign particals [sic]” and “I am opposed to all immunizations, I was illegally [coerced] and bullied to previously vaccinate my children. My religious belief does not jeopardize my legal rights, which I’m fully aware of now.”  Petitioner also stated that she has held her beliefs for “as long as I can remember.”

By memorandum dated April 25, 2017, respondent’s 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 she held a genuine and sincere religious objection to immunization.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 7, 2017.

Petitioner contends that respondent’s procedure and denial of her religious exemption request violated her due process rights and that her objections to immunizations are based on genuine and sincerely-held religious beliefs.  Petitioner seeks a determination that the student is entitled to a religious exemption from the immunization requirements of PHL §2164.

Respondent contends that petitioner failed to meet her burden of demonstrating that her beliefs are sufficient to support a religious exemption and that its determination was rational, not arbitrary or capricious, and in all respects proper. 

I must first address the procedural issues.  In her petition, petitioner refers to the exemption process as “a basic constitutional right protected and defended by the First Amendment.”  To the extent that petitioner attempts to raise constitutional issues in this appeal, I decline to consider such constitutional claims.  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 A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).

Petitioner next asserts that respondent failed to provide a sufficient explanation of the reasons for denying her request for a religious exemption.  In support of her claim, petitioner quotes 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, the February 21, March 24, and April 25, 2017 memoranda essentially stated that petitioner failed to demonstrate sincerely-held religious beliefs which are contrary to immunization.  Respondent states in its answer that it found that petitioner “did not elaborate on what [her religious] beliefs were or how they arose from scripture other than the two brief passages she cited” and that “petitioner’s application was denied because it relied on general religious statements and excerpts of scriptures, but otherwise lacked specificity about the nature and origin of her beliefs.”  The coordinator elaborates in her affidavit that she found petitioner’s statements to be “conclusory, non-responsive and inconsistent with facts.”

I find that respondent has articulated a sufficient rationale for its determination for purposes of this appeal.  Further, petitioner has had ample opportunity to respond to respondent’s reasons for its denial in this appeal and has 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.

Petitioner additionally contends that she was not afforded the opportunity to provide additional documentation.  Although not entirely clear, petitioner appears to allege that respondent erred in failing to request additional documentation prior to denying petitioner’s request and that respondent’s appeal process is used to “avoid having to raise ‘questions that remained’” regarding parents’ religious exemption requests.  I note that, while respondent may seek additional information, if deemed necessary (10 NYCRR §66-1.3[d]), respondent was not required to do so.  Indeed, as stated in the Department’s guidance, “[m]ost requests will be able to be implemented based solely on the basis of the written statement.  [A]ny supporting documents should be requested only when questions remain about the existence of a sincerely held religious belief based on review of the parental/guardian statement.”

In this case, after the February 21, 2017 denial of petitioner’s request, respondent informed petitioner of the availability of its internal appeals process.  While petitioner complains that respondent’s appeal process is “pro forma” and represents an “illusion of due process,” petitioner has not demonstrated that respondent’s process was inconsistent with PHL §2164 or the Department’s guidance.  Therefore, on this record, I find that petitioner has failed to carry her burden with respect to this claim (see e.g. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision no. 17,495).

Petitioner also complains that respondent did not follow its own procedure because she did not receive an interview.  In an affidavit attached to the petition, petitioner avers that she was only allowed to submit written answers to questions generated by respondent and was told that she was not allowed to bring any documents or a representative to the interview.  Petitioner further asserts that, when she arrived for the interview, she was asked to “fill out a questionnaire” and that, after “waiting an hour” for the interviewer to arrive, she left because she “had to get back to work.” 

While respondent denies the allegations in the petition in this regard, respondent does not directly address the circumstances of the interview.  Instead, in her affidavit, the coordinator avers that “the road to the appeal interview was a bit contentious.”  As evidence, respondent submits email exchanges between its health director and a secretary at the student’s school indicating that the health director attempted to arrange an interview with petitioner, who was “not cooperative in finding a date” and “hung up the phone during [the] conversation.”  In one email, the secretary indicated that petitioner “stated that her lawyer said she does not have to meet with [the health director] and fill out the appeal.”  In another email, the health director indicated that he had “tried to call [petitioner] several times this week [but] she must have blocked my office number” and that the last time he was able to reach her, she became “extremely agitated” and “hung the phone up on me several times.”

While the evidence in the record is not entirely clear, the record does indicate that an interview with petitioner and the health director did not occur in this case.  Respondent’s position appears to be that it could not arrange an interview because interactions with petitioner were “contentious.”  However, to support this assertion, respondent has produced only emails between two of its employees indicating that, in their view, petitioner was evasive regarding attempts to schedule the interview.  Nevertheless, while petitioner alleges that, on April 24, 2017, she “was left standing in the school office for over an hour while [the health director] never appeared to conduct the interview,” respondent denies this allegation and petitioner has produced no evidence that an appeal interview was actually scheduled to occur on that date.

While, as noted, the record indicates that no interview occurred in this case, I do not find that this necessitates that the appeal be remanded or sustained under the circumstances presented.  As indicated above, after respondent denied petitioner’s request on February 21, 2017, it allowed petitioner to submit written responses to interview questions.  It appears from the record that petitioner availed herself of this opportunity by typing her responses to these questions in a form dated April 24, 2017 and faxing these responses to respondent.[1]  Respondent’s coordinator considered petitioner’s responses in resolving petitioner’s appeal.  Although petitioner complains that her “demeanor was never considered,” I nevertheless find on this record that petitioner was afforded a sufficient opportunity to articulate her religious views to respondent.[2]  However, I remind respondent that, 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 or guardian’s statements and may consider the parent or 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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of D.G. and B.L., 57 id., Decision No. 17,345; Appeal of T.R., 57 id., Decision No. 17,329).

Turning to the merits, proof of immunization against certain diseases is generally required for a child to be admitted to school (PHL §2164[6]).  However, evidence of immunization is not required if a child’s parent or guardian holds genuine and sincere religious beliefs contrary to the mandated immunizations (PHL §2164[9]).

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 (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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of T.R., 57 id., Decision No. 17,329; Appeal of H.A., 57 id., Decision No. 17,215).  A parent or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that the parent or guardian objects to the child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of the 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]).

As noted above, 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 or guardian’s statements and may consider the parent or 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 S.F. and E.R., 58 Ed Dept Rep, Decision No. 17,439; Appeal of D.G. and B.L., 57 id., Decision No. 17,345; Appeal of T.R., 57 id., Decision No. 17,329).

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 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’s general statements and citations to Biblical verses, without further elaboration, are insufficient to establish the religious basis or origin of her beliefs in this regard (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,954; Appeal of K.E., 48 id. 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).  For example, petitioner asserts that the student’s “body is the temple of God” and that “the injection of foreign substances into our bodies” is inconsistent with “our family’s religious beliefs ....”  Petitioner specifically asserts that the effect of vaccination is “to criticize our Lord and question His divine omnipotence.”  Petitioner supports her assertions with two citations to Biblical texts which she does not elaborate upon.  Based on the general nature of petitioner’s statements, I cannot conclude that respondent’s denial of her exemption request was arbitrary and capricious.  On this record, I find that petitioner has failed to explain and specify the precise nature and origin of her beliefs in her own words (cf. Appeal of N.I., 57 Ed Dept Rep, Decision 17,176).

I also note that petitioner stated in her response to the interview questions that it is against her “religious belief to inject the body with foreign particals [sic].”  On appeal, petitioner also generally states that vaccines contain or are derived from “blood cells and other biological materials” including human and animal cells, serums and cultures, and provides a copy of a chart from the Centers for Disease Control and Prevention (“CDC”) listing such ingredients.  Nevertheless, on this record, petitioner has not established that any such objections to specific ingredients contained in vaccines are based on a genuine and sincerely-held religious belief.

While the record reflects that petitioner may sincerely object to immunizations, the crux of the issue 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 App’x 16, cert. denied, 133 SCt 1997).  The record, as a whole, lacks evidence of sincerely-held religious objections to immunizations.  Accordingly, I find that petitioner has failed to demonstrate that her opposition to immunization stems from sincerely-held religious beliefs or that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious, or in violation of law.  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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