Appeal of D.C., on behalf of her child O.C., from action of the Board of Education of the New York City Department of Education regarding immunization.

Decision No. 17,632

(April 29, 2019)

Giulia Miller, Esq., attorney for petitioner

Zachary W. Carter, Corporation Counsel, attorney for respondent, David S. Thayer, Esq., of counsel

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

As relevant here, petitioner has two children that have attended school in respondent’s district.  Petitioner requested a religious exemption from immunization requirements for the child who is not the subject of this appeal (“the younger child”).  After respondent denied that request, petitioner sought judicial review in the U.S. District Court for the Eastern District of New York (“district court”).  In a decision on petitioner’s motion for a preliminary injunction in that case, the district court denied the motion, finding in relevant part that her “aversion to vaccinations for her child stems from her personal fear for her child’s well-being and not a religious belief such that she is entitled to a religious exemption” (Check ex rel. MC v. New York City Dept. of Educ., 2013 WL 2181045, *3 [EDNY May 20, 2013] [denying petitioner’s motion for a preliminary injunction], appeal dismissed [2d Cir. 13-2385, Oct. 25, 2013]; see also Phillips v. City of New York, 775 F3d 538, 541 [2d Cir. 2015] [affirming dismissal of petitioner’s complaint following consolidation with another action]).

By letter dated November 22, 2017, petitioner requested a religious exemption from immunization on behalf of the student who is the subject of this appeal.  She explained the influence of religious relatives in her upbringing, and how she did not realize until after the birth of her younger child that immunization was against her faith.

In her request, petitioner also explained that her turning point with respect to vaccination came during her pregnancy with her younger child when she feared she would lose the baby.  After the child was born in 2007, the child “became severely ill” and was “hospitalized repeatedly.”  Petitioner explained that she promised “[i]f God would save” the younger child, petitioner “would forever hold His Word and keep his Commandments above all else.”  After the child survived, petitioner “threw [her]self into Christ’s teachings, making good on [her] promise to always put Him first from that moment on for everything.”  According to petitioner, the final time that she immunized the student was in June 2008.

Petitioner explained that, through this experience, she realized that the body is “made by God, and God has given us an immune system and the worldly means to keep it pure and vital.”  According to petitioner, vaccinating a healthy body shows “a great lack of faith in God’s gift of life and promise of protection.”  She stated that she “believe[s] we are spiritually directed to honor our bodies as temples to the Lord and not present a cure for an illness that we do not have.  To do otherwise would ... betray that promise I made to God in that hospital room as my child lay sick.”

By memorandum dated March 23, 2018, respondent’s health services coordinator denied petitioner’s request for a religious exemption.  The memorandum explained that the documentation provided by petitioner was “inadequate to warrant an exemption.”  According to the memorandum, the student had all of the required vaccines except the Tdap vaccine and certain doses of the polio and varicella vaccines.  The memorandum also informed petitioner of the availability of respondent’s internal appeals process, which included an interview with respondent’s health director, and further notified petitioner that if the appeal was denied, she could commence an appeal to the Commissioner pursuant to Education Law §310.

Petitioner appealed the determination and elaborated upon her decision not to vaccinate the student in an undated letter.  Petitioner completed a “Request for Religious Exemption to Immunization Parent/Guardian Interview” form dated May 24, 2018.  In the interview form, petitioner explained that she opposed all vaccines because she believed “God will keep us safe from harm.  God is the ultimate and only healer.”

By memorandum dated May 30, 2018, respondent’s coordinator denied petitioner’s appeal.  Respondent’s coordinator explained that petitioner’s documentation and responses on the interview form did “not substantiate a finding that [petitioner] hold[s] genuine and sincere religious beliefs which are contrary to immunization.”  According to the coordinator, petitioner also “failed to provide documentation which explains why prior vaccinations did not violate [her] religious beliefs.”  This appeal ensued.  Petitioner’s request for interim relief was granted on July 30, 2018.

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 of PHL §2164.  Petitioner also claims that respondent failed to provide her with specific reasons for the denial of her request, that respondent’s appeal process is flawed, and that respondent’s denial of her exemption request was arbitrary and capricious.

Respondent asserts that its denial was not arbitrary and capricious, particularly in light of the decision by the district court denying petitioner’s motion for a preliminary injunction regarding her religious exemption request for her younger child.

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 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 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 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 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]).

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).

Initially, I must address a preliminary matter.  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 petitioner attempts to raise such novel constitutional issues, I decline to consider them.

Regarding petitioner’s assertion that respondent failed to provide an adequate explanation for the denial of her request, as indicated in guidance from the State Education Department, 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.  Here, I find that respondent adequately articulated a rationale for its determination, to which petitioner has had ample opportunity to respond and has indeed done so.  In its memoranda, respondent explained that petitioner failed to substantiate her claim that she held a sincere religious belief against immunization or to adequately explain why prior vaccinations were not contrary to her religious beliefs.[1]

The record indicates that one factor considered by respondent in denying petitioner’s exemption request was the student’s 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).  Here, petitioner explained that the critical turning point on vaccines occurred after she experienced the difficult birth of her younger child in April 2007 and that child’s subsequent hospitalization in December 2007.  Petitioner admits, however, that the student was immunized in June 2008. Petitioner states that she went along with the immunizations despite her feelings because she was afraid to say something to her doctor, whom she trusted.  She further explains that over that summer, she discussed immunizations with her “church friends” and her mother-in-law and decided that any further immunizations were contrary to her religious beliefs.  Petitioner’s explanation notwithstanding, the fact that petitioner continued to have the student immunized well after the events that she alleges caused her to change her religious views concerning vaccination raises serious questions about the sincerity of petitioner’s religious beliefs.

In any case, I find that petitioner has failed to meet her burden to prove that respondent’s denial of her request was arbitrary and capricious.  Respondent argues that the denial of petitioner’s request was not arbitrary and capricious, particularly in light of a previous decision by a federal district court regarding petitioner’s prior request for a religious exemption in which the district court determined that petitioner’s testimony established that her opposition to immunization stemmed from health concerns rather than her religious beliefs.  Respondent asserts that “[p]etitioner’s reformulation of her beliefs to resemble precedent cases before the Commissioner is unconvincing in light of this prior adverse adjudication.”  Petitioner responds that her previous request for a religious exemption should not be considered because such consideration would be unduly prejudicial.[2]

As noted above, petitioner challenged respondent’s denial of her earlier exemption request for the younger child in federal court.  In its decision denying her preliminary injunction motion, the district court noted that petitioner testified in that proceeding that vaccines could put the younger child “in anaphylactic shock,” and that she requested the “religious exemption because it is [her] strong belief that all vaccines are made with toxic chemicals” (Check ex rel. MC v. New York City Dept. of Educ., 2013 WL 2181045, *2).  While the district court acknowledged that “Plaintiff is a deeply religious woman whose religion plays an important, and even central, role in her life,” it noted that “not every belief held by a religious person is a religious belief” (Check ex rel. MC v. New York City Dept. of Educ., 2013 WL 2181045, *2).  The district court concluded that petitioner’s “aversion to vaccinations for her child stems from her personal fear for her child’s well-being and not a religious belief such that she is entitled to a religious exemption” (Check ex rel. MC v. New York City Dept. of Educ., 2013 WL 2181045, *3).[3]  Notably, petitioner’s request for the younger child was also made after she purportedly had a change of heart regarding immunizations in 2007 and 2008.

Here, petitioner has failed to allege any facts that would explain how she could now be entitled to a religious exemption following the prior adverse adjudication that occurred after her alleged change of heart.  She does not allege any change in circumstances since the district court’s determination that her opposition to immunization was not based on sincerely-held religious beliefs.  Indeed, the district court quoted testimony by petitioner in which she articulated the same religious objections to mixing the blood of animals with the blood of humans and injecting foreign proteins such as viruses and bacteria into the bloodstream that she raises in this appeal.  Petitioner does not address the merits of the district court’s decision in this appeal or in any of the documents she submitted to respondent pursuant to her exemption request, nor has she established that her religious beliefs have changed in any material way from the beliefs determined by the district court not to constitute a valid religious objection to immunization (see Appeal of M.C. and A.S.C., 51 Ed Dept Rep, Decision No. 16,324).

Accordingly, the sincerity of petitioner’s religious beliefs expressed in the instant request is undermined by her failure to explain how she could now be entitled to a religious exemption after the prior adverse adjudication.[4]  Considering that petitioner’s claimed religious objection to vaccination asserted to respondent and in this appeal appears to be largely based on objections to defiling the blood by injecting animal cells and other foreign materials, which suggests that petitioner’s objections are health-related, the district court’s finding that petitioner’s objection to her other child’s immunization was health-based and not based on religion is particularly probative (see Appeal of M.C. and A.S.C., 51 Ed Dept Rep, Decision No. 16,324).  Thus, while respondent was obligated to, and did, consider petitioner’s request for an immunization exemption for O.C., it was rational for respondent to question the sincerity of petitioner’s beliefs given this history, and I find that petitioner has failed to demonstrate a sincerely-held religious opposition to immunization.  As a result, on the record before me, I find that petitioner has failed to carry her burden of demonstrating that respondent’s determination is unsupported by the record or otherwise arbitrary and capricious or in violation of law.  The appeal must therefore be dismissed.

THE APPEAL IS DIMISSED.

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