Appeal of A.G. and T.S., on behalf of their child V.S., from action of the New York City Department of Education regarding immunization.

Decision No. 17,615

(April 4, 2019)

Chesney & Nicholas, LLP, attorneys for petitioners, Lindsie B. Alterman, 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 (“respondent”) that their child (“the student”) is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164. The appeal must be dismissed.

The record indicates that, after respondent notified petitioners that the student was missing the Tdap vaccine required by PHL §2164, petitioners requested a religious exemption from immunization on behalf of the student. In a written statement, petitioners explained that they opposed all vaccinations based on their beliefs as Orthodox Christians. Although they admitted that they had previously immunized their children, they asserted that they did so when they first moved to the United States and did not understand the law. Petitioners also explained that they had a change of heart regarding vaccinations after the death of petitioner A.G.’s father.

By memorandum dated November 13, 2017, respondent’s health services coordinator (“coordinator”) denied petitioners’ request for a religious exemption. The memorandum explained that petitioners failed to sufficiently specify the precise nature and origin of their beliefs to demonstrate a sincere and genuine religious belief contrary to vaccinations. According to the memorandum, petitioners also failed to explain why prior vaccinations did not violate their religious beliefs. The memorandum informed petitioners of the availability of respondent’s internal appeals process, which included an interview with one of respondent’s health directors, and further notified petitioners that if the appeal was denied, they could commence an appeal to the Commissioner pursuant to Education Law §310.

Petitioners appealed the determination and met with the health director. During the meeting, petitioners were asked questions about their opposition to immunizations and the religious basis for their beliefs. Petitioners indicated that they believed they were created in God’s image, and that God commanded them to “keep clean and pure.” They further asserted that all vaccines contain fetal tissue, and that it would violate their religious belief against abortion to put such an ingredient in their bodies. They explained that they previously gave their children vaccinations because they were immigrants to the United States and wanted to comply with the law and doctors’ recommendations. According to A.G., she was not “as close to God” before her father died. She stated that her father told her “[i]mmunizations are [a] lack of faith in God and in his defense, the immune system.” A.G. asserts that after her father died in 2014, she became closer to God, did a lot of research, and concluded that immunizations violate her religious beliefs.

By memorandum dated January 3, 2018, respondent denied petitioners’ appeal. Respondent explained that petitioners’ documentation and responses at the interview did “not substantiate a finding that [petitioners] hold genuine and sincere religious beliefs which are contrary to immunization.” According to respondent, petitioners also “failed to provide documentation which explains why prior vaccinations did not violate [their] religious beliefs.” This appeal ensued. Petitioners’ request for interim relief was granted on February 13, 2018.

Petitioners argue that respondent’s denial of their request for a religious exemption was arbitrary and capricious. Petitioners further object to the procedure which respondent employed in this case and argue that respondent improperly delayed issuance of the coordinator’s appeal determination.

Respondent contends that petitioners did not sufficiently articulate a religious basis for their exemption request and thus did not meet their burden of proving that the denial of their exemption request was arbitrary and capricious. Specifically, respondent contends that petitioners failed to connect their claimed religious opposition to the Tdap vaccine.

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 F.Supp 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 F.Supp 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 F.Supp 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).

First, petitioners allege that respondent impermissibly delayed rendering a decision on their appeal decision because, although the denial letter was dated January 3, 2018, it was “not postmarked until January 22, 2018.” Respondent “admits that [p]etitioners were sent the denial letter” and refers to the letter for a “full and complete statement of its contents.” The circumstances under which the appeal denial letter was prepared are otherwise unclear from the record. However, it appears that the student remained enrolled in respondent’s schools between January 3 and 22, 2018. Therefore, on this record, there is no evidence that petitioners suffered any prejudice as a result of respondent’s alleged “delay” ( cf . Appeal of V.S. , 58 Ed Dept Rep, Decision No. 17,435). To the extent petitioners assert that respondent’s alleged delay “unjustly took 19 days from the petitioners[‘] already short, 30 day, deadline to appeal...,” I note that the Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination ( Appeal of G.H. and S.H. , 57 Ed Dept Rep, Decision No. 17,269). I cannot find on this record that respondent committed any error in this respect, or that petitioners are entitled to relief arising from respondent’s actions.

Petitioners also assert that respondent failed to provide an adequate explanation for the denial of their request. 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. In its memoranda, respondent explained that petitioners failed to specify the precise nature and origin of their beliefs or adequately explain why prior vaccinations were not contrary to their religious beliefs. On this record, I find that respondent adequately articulated a rationale for its determination, to which petitioners have had ample opportunity to respond and have indeed done so ( Appeal of D.R. , 58 Ed Dept Rep, Decision No. 17,585; Appeal of a Student with a Disability , 57 id ., Decision No. 17,169).[1]

Turning to the merits, petitioners have failed to meet their burden of proving that respondent’s denial of their religious exemption request was arbitrary or capricious. The record indicates that one factor considered by respondent in denying petitioners’ 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), although it is relevant to an assessment of the sincerity of the alleged religious beliefs ( 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).

Here, petitioners explained that the critical turning point on vaccines occurred after the death of petitioner A.G.’s father, when petitioners’ faith was not as strong. Specifically, petitioner A.G. stated:

[A]fter my father’s death, I had started to realize what I was doing was wrong – that I had betrayed what had kept us living ... the fact that my father passed away was a humongous tragedy for all of us, but it was even more meaningful to me. I always remember how he would say, “Immunizations are a lack of faith in God and in his defense, the immune system” and how I have been so wrong to not pay attention to this.

The coordinator found in her written determination that petitioners “failed to provide documentation which explain[ed] why prior vaccinations did not violate [their] religious beliefs.” In an affidavit submitted with this appeal, the coordinator further states that petitioner A.G. “freely admitted” that the student had been previously vaccinated, and that petitioner A.G.’s “characterization of vaccines as ‘unclean or diseased’ suggest[ed],” to the coordinator, “a medical fear rather than [a] religious belief.”

Upon review of the record, I cannot conclude that respondent’s determination that petitioners failed to adequately explain their change of heart and that their concerns were primarily health-based to be arbitrary or capricious. In the written statement, petitioner A.G. stated that:

After my dad passed away[,] I took some time to learn close about vaccines. I started to do research ... about vaccinations and was just shocked what was given to my daughter .... I did a lot of research, watched documentaries, and asked questions using internet groups and forums. I listen to doctors, immunologist, naturopath and homeopath. I discovered there’s a massive amount of evidence that simply cannot be ignored [sic].

This research-based explanation undermines petitioners’ assertion elsewhere in the written statement and record that petitioners’ change of heart was revelatory; i.e. , based upon religious revelations upon the death of petitioner A.G.’s father, who opposed vaccination. Specifically, petitioner A.G. asserted in the written statement that her father’s death caused her to “start [] to realize what [she] was doing was wrong” and “realize [] that [she] did serve one god, and that [she] did betray him” by vaccinating her child. Such inconsistency undermines a finding that petitioners’ beliefs are sincerely held religious beliefs, and I decline to overturn respondent’s determination in this respect ( Appeal of L.T. and J.T. , 57 Ed Dept Rep, Decision No. 17,181).

I similarly decline to overturn respondent’s determination that petitioners’ objections to vaccinations were primarily health-based as opposed to religious in nature. The above-quoted passage demonstrates that petitioner A.G. arrived at her opposition to vaccination through “research” which included viewing “documentaries,” participating in “internet groups and forums,” and speaking with physicians and others involved in the field of health. Additionally, in their written responses to the appeal interview questions, petitioners described vaccinations as “unclean” or “diseased.” Given this evidence, I decline to overturn respondent’s determination that petitioners’ objections were primarily health-based.

Upon careful consideration of the entire record, I further find that petitioners offered only general statements concerning the perfection of the human body and purity of human blood which are insufficient to establish sincerely-held religious beliefs contrary to immunization. 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 ( Appeal of Students with Disabilities , 57 Ed Dept Rep, Decision No. 17,248; Appeal of L.T. and J.T. , 50 id ., Decision No. 17,181).

In their initial exemption request, petitioners stated that “God has created us in His image” and “commanded us in the Holy Bible to keep clean and pure.” Petitioners further explained in the statement that “[w]e are required to keep this wonderful gift, our human bodies, in good condition, and not to swallow or inject anything into it that would be unclean or diseased “and that they” accept God’s warning not to mix the blood of man with the blood of animals.” I find these statements about the perfection of the human body to be general in nature and, as such, insufficient to establish a sincerely-held religious opposition to immunization ( see e.g. Appeal of D.R. , 58 Ed Dept Rep, Decision No. 17,586).

Finally, it appears that petitioners’ objections to immunizations are based at least in part upon their opposition to abortion and, by extension, to vaccines derived from fetal tissue obtained from abortions. Petitioner A.G. asserts that her research revealed that diploid cell cultures are used in all immunizations and that such “ingredients are derived from the tissue of aborted fetuses.” In her response to written questions posed by respondent in the interview on appeal to the health director, petitioner A.G. also stated that “all vaccines contain one of the aborted fetal tissue ingredients.”

In response, respondent 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 who avers that the sole vaccine which the student requires, Tdap, is “available in presentations in which human embryo cell lines are not used.” Weighing petitioners’ conclusory allegations against the specific evidence provided by respondent, petitioners have failed to prove that the Tdap vaccine contains the ingredients that they identify as objectionable ( Appeal of N.I. , 57 Ed Dept Rep, Decision No. 17,176). Thus, petitioners have failed to establish a nexus between their claimed religious beliefs and their objections to the Tdap vaccine ( see Appeal of M.B. and W.D. , 57 Ed Dept Rep, Decision No. 17,425; Appeal of N.I. , 57 id ., Decision No. 17,176).

For all of the above reasons, petitioners have failed to demonstrate that respondent’s denial of their religious exemption request was arbitrary or capricious.

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DIMISSED.

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