Appeal of M.M. and M.M., on behalf of their son M.M., from action of the New York City Department of Education regarding immunization.

Decision No. 17,586

(February 11, 2019)

The Castro Clan, PLLC, attorneys for petitioners, Angel Antonio Castro, III, Esq., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Christopher Ferreira, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“DOE” or “respondent”) that their son, M.M. (“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 2017-2018 school year, petitioners enrolled the student in pre-kindergarten within respondent’s school district.  By letter dated April 26, 2017, petitioners sought a religious exemption from immunization pursuant to PHL §2164 for the student.  In the letter, petitioners stated, among other things, that they believe that “[v]accinating [our] child goes against our [r]eligion [sic] [b]eliefs.  As [we] learned in the bible it teaches us that our children are a gift from God and our immune system can fight anything on its own ... God did not create vaccines[;] we as human beings are made perfect the way God intended us to be.”  Petitioners also stated that “[m]ost vaccines that are created are made from lung tissue that comes from aborted babies” and that “many vaccines they make come from blood and diseased animals and also decomposed animal parts that are never sterile.”

By memorandum dated November 21, 2017, respondent’s health service coordinator (“coordinator”) in the Office of School Health (“OSH”) denied petitioners’ immunization exemption request on the ground that petitioners’ documentation was “inadequate to warrant an exemption and does not substantiate a finding that [petitioners] hold genuine and sincere religious beliefs which are contrary to immunization.”  The coordinator further informed petitioners that the student had all required vaccines “except for DTP#4, MMR and varicella.”  The coordinator also informed petitioners that they could appeal the determination by arranging an interview with one of respondent’s health directors.[1]

The record indicates that petitioners met with respondent’s health director on December 6, 2017.  In response to questions posed by the health director about their religious beliefs, petitioners largely repeated the information and contentions contained in their exemption request.  The record contains petitioners’ typed responses to the health director’s questions.  It appears that petitioners generated this written summary of their responses and transmitted it to the coordinator sometime after the interview.  According to petitioners’ typed responses, the veracity of which respondent does not contest on appeal, petitioners stated at the interview that “having this walk with Christ made [us] realize a different way of life,” and that they did not “feel that it is necessary to give [their] child something that isn’t natural or that can harm him.”

The record also contains a second set of typed responses by petitioners to the health director’s interview questions dated March 27, 2018.  The circumstances under which this second set of responses were generated is unclear from the record; petitioners assert that their “answers given on December 6, 2017 were ... rejected by the district and [petitioners] were required to submit new answers.”  The coordinator, by contrast, asserts that she considered petitioners’ original typed responses and that petitioners also “provided” her with the second set of responses dated March 27, 2018.

By memorandum dated April 29, 2018, the coordinator denied petitioners’ appeal, stating that:

The documentation you submitted and the information provided during the appeal interview [did] not substantiate a finding that [petitioners held] genuine and sincere religious beliefs which are contrary to immunization.

This appeal ensued.  Petitioners’ request for interim relief was denied on June 6, 2018.

Petitioners contend that their objections to immunizations are based on genuine and sincerely-held religious beliefs and seek a determination that the student is entitled to a religious exemption from the immunization requirements of PHL §2164.  Petitioners also contend that respondent erred by neglecting “to further inquire” into their religious beliefs after the coordinator initially denied their exemption request on November 21, 2017.  Petitioners additionally assert that they recently joined the “Congregation of Universal Wisdom ... to further prove the sincerity and nature of their religious beliefs.”

Respondent contends that petitioners failed to specify the precise nature and origin of their beliefs 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.  Petitioners base their request for relief, in part, upon their First Amendment rights.  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).  Therefore, to the extent that petitioners attempt to raise constitutional issues in this appeal, I decline to consider such constitutional claims.

Petitioners also contend that respondent had a “duty” to inquire further into their religious beliefs after it rejected their written statement on November 21, 2017, and that respondent’s failure to do so necessitates remanding or sustaining the instant appeal.  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 (see e.g. Appeal of H.G., 58 Ed Dept Rep, Decision No. 17,524).  Indeed, as stated in guidance issued by the State Education Department (“Department”), “[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, following the November 21, 2017 denial of petitioners’ request, respondent informed petitioners of the availability of its internal appeals process, which included an interview with respondent’s health director.  Petitioners availed themselves of this opportunity.  Petitioners have not demonstrated on this record that respondent’s process was inconsistent with PHL §2164 or the Department’s guidance.  Therefore, on this record, I find that petitioners have failed to carry their burden with respect to this claim (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,495).

Turning to the merits, the appeal must be dismissed. 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 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 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 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 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 documentation (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 petitioners’ statements and may consider petitioners’ 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).

Respondent asserts that the student’s history of vaccination supports a finding that petitioners’ claimed opposition to vaccination is not genuine or sincerely-held.  According to the record, respondent’s coordinator considered the student’s prior immunization history as one factor in denying petitioners’ religious exemption request.  In an affidavit submitted with the petition, the student’s mother “admit[s]” that the student “has received vaccines in the past,” but asserts that her “religious studies have advanced since then and [her] walk with God has led me to the beliefs I currently hold that are contrary to immunization.”

Courts have consistently held that the fact that petitioners’ children were 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, cert. denied, 133 SCt 1997).  A paramount question in investigating an individual’s sincerity is whether he or she “acts in a manner inconsistent” with his or her asserted belief (Lewis v. Sobol, 710 FSupp 506, quoting Int’l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F2d 430).

On this record, I cannot find respondent’s determination that the student’s prior vaccination evinces a lack of sincerity to be arbitrary or capricious.  Petitioners admit that the student received vaccinations “back in 2014” (i.e., three years prior to the date of petitioners’ religious exemption request) but assert that their “belief in God and the Bible wasn’t has [sic] strong as it is today.”  The coordinator did not find this explanation credible, reasoning that petitioners “did not describe a notable intervening event that might explain an alteration in [their] belief system.”

In matters of credibility, I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see e.g. Appeal of D.W., 58 Ed Dept Rep, Decision No. 17,565; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  Here, the record does not contain clear and convincing evidence that respondent’s credibility determination in this regard is inconsistent with the facts.  Petitioners present no evidence in the petition or in their written submissions to respondent demonstrating how their religious beliefs changed such that they now oppose immunizations.  Petitioners merely assert in a conclusory manner that their religious position has evolved since 2014.  Therefore, on this record, I cannot find respondent’s determination concerning petitioners’ prior vaccination of the student and their alleged subsequent change of heart to be arbitrary or capricious.

 Upon careful consideration of the entire record, I find that petitioners’ general references to their faith and beliefs are insufficient to establish the religious basis or origin of their opposition to 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).

In their initial exemption request, petitioners indicated that “we as human beings are made perfect the way God intended us to be,” and that “the body is the temple of the holy ghost which is in you.”  Petitioners also asserted that “our immune system can fight anything on its own.”[2]  While these statements were accompanied by two citations to Scripture, I find these statements about the perfection of the human body and immune system to be general in nature and, as such, insufficient to establish a sincerely-held religious opposition to immunization (see e.g. Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250).

I further find that petitioners’ asserted belief in the perfection of the human body and immune system to be inconsistent with the written responses petitioners provided in response to the health director’s interview questions.  One such question asked: “Do you believe in medical intervention?  Do you or your child take medicine, x-ray[s], blood transfusions?”  Petitioners responded that they “believe that God has given [d]octors the ability to help, aid, and heal with either treatment or medication.  However, [we] also feel that the body’s immune system is to be kept healthy by keeping it pure.”  Respondent’s coordinator avers that, to her, petitioners’ response “seemed contradictory to [petitioners’] assertions about the purity of the body, as it suggests that [petitioners] would allow medical intervention under other circumstances.”  In addition, respondent’s coordinator avers that petitioner’s statement in her March 27, 2018 response to the director’s interview questions that, if her child had an illness, she would “allow doctors to treat” him also “contradicted the assertion that the body must remain pure and free of substances.”

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; Appeal of N.A., 58 Ed Dept Rep, Decision No. 17,458; Appeal of T.R., 57 id., Decision No. 17,329).  While petitioners further explain in their petition that, in their statements to respondent, they “attempted to convey that inserting a needle into or cutting with a scalpel or any other intrusion of a foreign object or substance into the [s]tudent’s blood would violate [their] religious beliefs,” I agree with respondent that petitioners’ statements about the use of medication and treatment are inconsistent with their statements regarding the perfection of the immune system and the purity of the blood.  As such, I find no error in respondent’s determination in this regard.

Furthermore, as noted above, petitioners claim to object to various materials derived from animals which they assert are contained in vaccines.  Petitioners’ objections to vaccinations appear to also be grounded in their concerns regarding the purity of the blood and their opposition to abortion and, by extension, fetal tissue obtained from abortions.  For example, in support of their position, petitioners assert in their petition that:

research has ... shown ... that many vaccines contain cells, cellular debris, protein, and DNA from aborted babies, including the MMR and Varicella vaccines.  The Bible shows us that murder is sin and [we] believe that supporting those that murder is a sin as well.

Petitioners also cite various Biblical verses and texts and attach a chart from the Centers for Disease Control and Prevention (“CDC”) as an exhibit to the petition to support their claim that various vaccines contain such ingredients.  

While petitioners acknowledge that “many” - not all - vaccines contain the ingredients to which they claim to object on religious grounds, they also assert that they object to all vaccinations, irrespective of whether they actually contain such materials.  This position undercuts petitioners’ argument that their opposition to immunization is actually religious in nature (see e.g. Appeal of C.S., 50 Ed Dept Rep, Decision No. 16,163).  On this record, therefore, petitioners have failed to carry their burden of proof with respect to this claim.

Finally, petitioners submit, for the first time in this appeal, proof that they and the student are members of the “Congregation of Universal Wisdom.”  Petitioners assert that the Congregation of Universal Wisdom is a “religious organization” which “oppose[s] vaccination.”  Respondent objects to consideration of this document because it was not before respondent at the time it made its determination denying petitioners’ exemption request.  Indeed, petitioners admit that their “enrollment in the Congregation of Universal Wisdom was a last-ditch effort to prove [their] beliefs with supporting documentation because [they] ha[d] done [their] best to explain [their] beliefs throughout this religious exemption process, but ke[pt] getting denied ....”  As noted above, 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).  I have reviewed the document submitted by petitioners and, even assuming it was properly presented to respondent at the time the determination was made in this case, I find that, based on the record as a whole, its contents are not dispositive in determining whether a genuine and sincere religious belief against immunizations exists (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,495).

While the record reflects that petitioners may sincerely object to immunizations, the crux of the issue is whether the reasons for their 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 petitioners have failed to demonstrate that their 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.

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