Williams v Orchard Park Sch. Dist.
Annotate this CaseDecided on February 15, 2019
Supreme Court, Erie County
Marina Williams, Parent and Natural Guardian Of Carley Whitney, an Infant and Mackenzie Whitney, an Infant, PETITIONER(S),
against
Orchard Park School District, RESPONDENT(S).
801602/2019
Frank T. Housh, ESQ.
Attorney for Petitioner, Marina Williams
Andrew J. Freedman ESQ. & Joseph S. Brown, ESQ.Attorney for Respondent, Orchard Park School District
Mark J. Grisanti, J.
Marina Williams through counsel brings an order to show cause seeking declaratory and injunctive relief in that the claim is that the Orchard Park School District (hereinafter "District") [*2]acted outside of regulations in not providing educational services. Petitioner seeks readmittance to the school or alternative plans to educate.
HISTORY
On October 4th of 2018, the District denied Petitioner's request for a religious exemption which Petitioner filed on October 1st of 2018. Petitioner filed with the District a request for exemption on forms that are over three years old and was addressed to the West Seneca School District. Attached to that form of request was a letter undated from the Temple of the Inner Flame. It's signed by Carol Ann Liaros, Reverend. In the District's denial, the District states defined by New York State Education Law. The District goes on to say that your request is on a form that's over three years old which was addressed to the West Seneca School District and that you did not explain why you are requesting the exemption and did not indicate whether you are opposed to all immunizations and the religious basis that prohibits particular immunizations. The District said that you have fourteen days to submit proper immunization and that you have thirty days to appeal.
On October 23rd of 2018, the District sent to Petitioner a reminder letter stating that if you did not provide proof of immunization, the children will not be permitted to attend school after Friday, October 26th . On October 25th, it's reported that Petitioner called the District and said that she was in Mexico and can we basically have an extension as I am appealing the decision. The District then extended the deadline to November 2nd of 2018. On November 1st of 2018, the Petitioner signed a new form for request to exempt addressed to the Orchard Park School District, not the West Seneca School District as previously provided. The information on that form for the request is basically the same as the original form request that was dated over three years ago to a different school. Attached to it was the same undated letter from three years ago. The District did not consider it because of that issue, and it was a month late, and the District further explains that the children were previously immunized years back and this discrepancy has not been explained. The District felt that the new filing had no new information that supports Petitioner's position of sincere religious beliefs. There were no specifics or explanation in essence of what was submitted that would change a District's position or that the fact that there was prior immunizations years back that has not been explained. On November 2nd, the District was served with an appeal that includes the November 1st form to Orchard Park requesting the exemption that I just talked about. It was attached to the November 2nd appeal. November 2nd was the last day to appeal and the last day the children could attend the Orchard Park School. Petitioner was still sending the children to school, and on November 9th the request for a stay pending appeal filed by Petitioner was denied by the State Education Department. The District extended the children's stay at Orchard Park School until November 30th of 2018. On November 27th, the Petitioner provided lab order forms, and the District advised the Petitioner that this document does not prove immunization. The District claims by affidavit that on November 27th, when Petitioner dropped off the lab forms, that the Petitioner stated that I'm trying to buy some time and that I have no intention to immunize. On November 29, 2018, the District [*3]superintendent wrote to Petitioner and advised that the District felt that Petitioner was stalling, and Petitioner made no attempt to obtain titer shots or full immunization for her children. Therefore, November 30th would be the last day for the children to attend as we kept extending because we thought you were going to comply or find other educational means for your children. Petitioner still sent the children to school. The superintendent then sent another letter on December 3rd , stating that if they come back to school they will be staying in the principal's office until being picked up. The Petitioner then submitted forms from Quest that state blood work December 5, 2018 with nothing else on it. After that letter, the children stopped going to school. There had been no results of alleged blood work provided from the December 5, 2018 note from Quest. Various e-mails and letters that are attached to the documents that were submitted to the Court went back and forth between counsel and counsel from the District where the District asked, please show us the results of the December 5, 2018 blood work as the District is willing to review the results to determine if the children are eligible to come back. Then this petition was filed February 13, 2019, which was dated February 6, 2019, seeking this relief.
ANALYSIS
New York State has long recognized the need to balance the protection of public health against the constitutional rights of parents to raise their children in accordance with their own religious beliefs. There is a statutory exemption from vaccination requirements that is specific. Educational Law 914 requires that every child attending school must submit proof of the immunization required by Public Health Law 2164. Public Health Law 2164 requires immunization from a host of diseases. As stated prior, New York recognizes a balance between protecting public health and constitutional rights, so the exemption found in Public Health Law 2164(9) states that immunizations are not required where the parents, "hold genuine and sincere religious beliefs," which are contrary to immunizations. Both New York State and the Department of Health and the New York State Education Department have then implemented the religious exemptions through regulations.
The Department of Health regulation NY-CRR 66-1.3(d) requires a written and signed statement stating that the parent objects to the child's immunization due to sincere and genuine religious beliefs which prohibit the immunization of the child. It goes on to say that the principal or others in charge may require further supporting documents if requested. It appears per our matter that Petitioner submitted on October 1, 2018 to the Orchard Park School District forms addressed, as previously stated, to a prior school three years old with an undated letter from the Temple of the Inner Flame, and the District stated that the form was not sufficient. There were no other further documents provided. On November 2nd, when the correction form to the Orchard Park form again was submitted, as stated prior, the District said, "it's late, we still have a [*4]discrepancy". When Petitioner submitted the form that states blood work notification on January 5, 2018 from Quest, the District stated that it does not comply with NY-CRR 66.1.1(j) . Petitioner feels that it does, and the children should not be excluded from the school. Whether the blood work notification of December 5, 2018 complies with serological testing per 10 NY-CRR 66.1.1(j), which defines process in conjunction with 10 NY-CRR 60-1.3(b) seems to be the question and one of the major issues in this matter. 66.1.3(a) of the NY-CRR states, "Do not admit child to school unless you provide a certificate of immunization." We do not have this in our case. We have no certificate of immunization. 66.13(b) states, "Provide documents that the child is in process of receiving immunization as defined by 66-1.1(j)" and person in charge of school will not refuse to admit the child to school if the child is in process.
THE MEANING OF "IN PROCESS" AS IT RELATES TO 66.1.1(J) OF THE NYCRR
Now, what does "in process" mean? 66.1.1(j) defines in process as a child obtaining serological test within thirty days of notification that such testing is requested. Petitioner claims this is a violation. Serological test means a blood test for immunoglobulin G results reported as equivocal are not accepted proofs of immunity. A positive serological test can be accepted in place of vaccination only for the following diseases: measles, mumps, rubella, varicella, hepatitis B, and all three serotypes of polio myelitis and the polio vaccine. The Court finds the Petitioner has not shown that they are "in process".We have no results from the alleged December 5, 2018 blood work note. That was two and a half months ago. We have no serology results or titer test results. Therefore, there's no compliance with 2164 of the Public Health Law nor 914 of the Educational Law nor compliance with 10 CRR-NY 66-1.1 or 10 NY-CRR 60-1.3(b).
CONCLUSION
This Court cannot order the children to be readmitted to the school, nor will the Court rule on what the Petitioner submitted initially for the exemption and its sufficiency. That matter is on appeal with the Commissioner of Education and not before me, because this is not at an Article 78 proceeding. This Court believes, and all counsel agrees with this because that is an administrative remedy that has not yet been exhausted per appeal. As for alternative method of education, the District did allow the children to stay over one and a half months to either correct the situation or felt to get other educational means. They felt that that process was being stalled, so they stopped. Per Educational Law 3214(a), "a District must provide alternative instructions to students that are suspended out of school." The argument by Orchard Park feels that these children are not suspended, and they cannot have them come to the school for instructions as if they were a suspension student per lack of immunization or in the in-process component to have a waiver. The District has a policy and a discretion of home tutoring and providing home instruction for children that cannot attend due to physical, mental, or emotional injury. Orchard Park District has stated that these children do not comply, that particular criteria are specific for those needs; for example, an injury of some sort to a student. These children are not injured is what they are claiming. The State Education Department has no instruction or rules regarding [*5]this type of situation. Petitioner has provided — has not provided —has not provided the results of a simple test that supposedly was done on December 5, 2018. Petitioner has not completed the process or in process of serological the children are apparently not up to date. It's interesting to note, and that's why the Court questioned on it, that the Petitioner has not even provided her own affidavit addressing any of these issues whatsoever. It's only her attorney that is making the argument. The Petitioner would have had the actual knowledge of all these issues that have been discussed, and not personally rebutted any of this information by the Petitioner in an affidavit. This Court believes that this is a detriment on factors that this Court must consider. Petitioner's counsel, during oral argument, in fact, the first time that I even heard the word "serological testing" come out of the Petitioner's mouth. We only had a slip labeled blood work in Petitioner's papers. There is no supporting document supplied to this Court by the Petitioner when you get to the factors of how you go ahead and do a declaratory or injunctive relief. It's simply lacking.
Therefore, based on that, this Court cannot order alternative methods or education. The petition for injunction and/or declaratory relief is denied in its entirety. There is still the balance of the administrative remedy that the Petitioner has on appeal with the Commissioner.
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