The opinion of the court was delivered by: Nickerson, District Judge.
Plaintiffs Francesca and Luigi Farina, individually and as
guardians for their minor children Gianluca and Alessio, brought
this action against defendant New York City Board of Education,
alleging that defendant violated plaintiffs' rights of religious
freedom and equal protection of the law under the First and
Fourteenth Amendments and 42 U.S.C. § 1983, by refusing to grant
plaintiffs an exemption from the immunization requirements of
New York Public Health Law § 2164 and prohibiting the children
from attending Public School 329 unless plaintiffs have their
children immunized. Plaintiffs contend that they are entitled to
an exemption under § 2164(9) because they hold genuine and
sincere religious beliefs which are contrary to the practices
required by § 2164(2) and (7)(a), mandating immunization against
Plaintiffs brought the action on September 25, 2000 and sought
by order to show cause a temporary restraining order and a
preliminary injunction. This Court denied the temporary
restraining order, and held a hearing on the preliminary
injunction on September 29 and October 2, 2000.
Our family holds genuine and sincere religious
beliefs which prohibit the practice of vaccination
and invasive treatments and tests by the State. We
release the School from this responsibility. With
this statement we invoke our rights and are therefore
exempt from vaccination pursuant to New York State
Public Health Law 2164 (2165), Paragraph 9.
This matter is personal and private. Please keep this
confidential statement on file as legal proof of our
The school secretary called the Community School District 21
Superintendent's office, and faxed a copy of Mrs. Farina's
letter to Denise Sasso, the school district Health Secretary,
who showed it to her supervisor, Anita Malta, executive
assistant to the Superintendent. Ms. Malta determined that the
letter was insufficient, as "it didn't really give us any
information about the nexus between the religious beliefs and
the request for an exemption." Ms. Sasso spoke to Mrs. Farina on
the telephone at P.S. 215, telling her that the letter was
insufficient, and that Mrs. Farina needed to provide additional
documentation supporting her religious beliefs relating to
The parties disagree about the next sequence of events, but
either in a telephone conversation or in a subsequent meeting at
the District office, Ms. Sasso asked Mrs. Farina what religion
she practiced. Mrs. Farina said her family was Roman Catholic.
Ms. Sasso then told Mrs. Farina to support her request with "a
letter from the Catholic diocese or from the parish." Ms. Sasso
testified that Mrs. Farina responded, "Oh, come on, I'm
Catholic. Don't be ridiculous. You know I'm not going to get
this documentation . . . [i]t's really not a religious belief,
it's a personal belief." This ambiguous statement may be
interpreted either to mean that Mrs. Farina knew her beliefs to
be secular rather than religious, or that she meant that her
religious opposition to inoculations is personal to her, not
official dogma of the Roman Catholic church. Mrs. Farina
maintains that Ms. Sasso also told her to change the letter to
reflect personal rather than religious beliefs, but that Mrs.
Farina insisted that the beliefs were religious.
Mrs. Farina sent a letter to Principal Gail Feuer on May 11,
1997, requesting an appointment to discuss the matter with Ms.
Feuer. Mrs. Farina then sent a certified letter on May 21, 1997
to Ms. Feuer asserting:
"[a]ccording to New York State Public health law
2164, my child's records are complete, and all legal
requirements have been complied with in full . . .
Should you have any questions regarding this matter,
I ask that you put them in writing, explain your
position and include and/or cite and reference the
appropriate statutory authority. If within 10 days I
do not receive any such communications, I will
consider this matter settled."
On June 7, 1997, Mr. and Mrs. Farina sent a letter to Ms.
Feuer that repeated that "our child's records are complete, and
all legal requirements have been complied with in full" and
We believe that it is not important for the School
District to understand our beliefs, but to respect
that we hold them. We are not requesting permission
for an exemption: we are invoking our right to claim
In the interest of expediting the processing of our
child's enrollment papers, we submit the following
supporting statements: As the legal and responsible
parents, we prohibit the vaccination of our children
by the State, as it is contrary to our genuine and
sincerely held religious beliefs and practices.
This letter also repeated the language of the May 21st letter
requesting that any questions be in writing, with statutory
authority, and asserting that the Farinas would consider the
matter "settled" if they received no response within ten days.
District 21 responded on June 19, 1997 with a letter stating
that the letter of June 7 was received and the matter was under
Francesca Farina testified that during the summer of 1997,
Gianluca Farina "regressed with speech and with behavior," and
that he was evaluated at Warbasse Nursery School from September
to December of 1997. Mrs. Farina presented Warbasse school with
a letter on September 30, 1997 which was identical to the letter
presented to P.S. 215 on May 1, 1997.
In December of 1997, Gianluca was placed in a special
education program at P.S. 329. That school never requested a
letter of religious exemption, but received a copy of the letter
to Warbasse school with Gianluca's records. Gianluca attended
school at P.S. 329 from December 1997 until September 20, 2000.
The Farina's younger son Alessio attended Warbasse Nursery
School beginning in 1998, receiving special education services
there. His records contained a copy of the Farina's letter to
Warbasse regarding Gianluca. In January 2000, Alessio was
reevaluated for special education needs, and in June 2000, the
Farinas received notification that he would be offered a place
in the special education program at P.S. 329. On September 7,
2000, Mrs. Farina brought Alessio to P.S. 329 and was told that
he would not be allowed to attend school without an immunization
record or a religious exemption.
Mrs. Farina contacted her attorney, who represents the Farinas
in this action. He sent a letter to Anita Garcia, Principal of
P.S. 329. The letter asserted that his clients have sincere
religious beliefs that prohibit them from having their children
immunized or inoculated, and stated:
My clients' religious beliefs are as follows:
"We believe in God, the Creator of heaven and earth
and all therein. God is the supreme authority over
this creation and is all-powerful. We are created in
God's image and must not be defiled. As the divine
Architect, God designed our bodies to have immune
systems, which must not be defiled by immunizations.
Immunizations are a violation of God's supreme
authority, and therefore, unholy. Since immunizations
are `unholy' they violate our religious beliefs.
We believe that God has created us in His image. In
being created in God's image, we are given His immune
system. We are bestowed with His gift, the immune
system. We believe it is sacrilegious and a violation
of our sacred religious beliefs to violate what God
has given us by showing a lack of faith in God."
My clients also believe the following quotations from
the Bible support their religious beliefs:
"Know ye not that your body is the Temple of the Holy
Ghost which is in you, which ye have of God and ye
are not your own."
"If any man defiles the Temple of God, him shall God
destroy, for the Temple of God is holy, which ye
"That your faith should not stand in the wisdom of
men, but in the power of God."
To obtain a preliminary injunction, plaintiffs must show: "(a)
irreparable harm and (b) either (1) likelihood of success on the
merits or (2) sufficiently serious questions going to the merits
to make them a fair ground for litigation and a balance of the
hardships tipping decidedly toward the party requesting the
preliminary relief." See Deeper Life Christian Fellowship, Inc.
v. Board of Education, 852 F.2d 676, 679 (2d Cir. 1988)
(quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70, 72 (2d Cir. 1979) (per curiam)).
Plaintiffs meet the first element of the test. The Supreme
Court has stated: "The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96
S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); see also Deeper Life,
852 F.2d at 679.
The second element of the test requires an evaluation of the
merits of plaintiffs' claim that they have been improperly
denied religious exemption from immunizations for schoolchildren
required by New York Public Health Law § 2164. The statute
provides, in pertinent part:
(2) Every person in parental relation to a child in
this state shall have administered to such child an
adequate dose or doses of an immunizing agent against
poliomyelitis, mumps, measles, diphtheria, rubella
and haemophilus influenzae type b(Hib), which meets
standards approved by the United States public health
service for such biological products, and which is
approved by the state department of health under such
conditions as may be specified by the public health
(7)(a) No principal, teacher, owner or person in
charge of a school shall permit any child to be
admitted to such school, or to attend such school, in
excess of fourteen days, without the certificate
provided for in subdivision five of this section or
some other acceptable evidence of the child's
immunization against poliomyelitis, mumps, measles,
diphtheria, rubella and, where applicable,
haemophilus influenzae type b(Hib). . . .
(9) This section shall not apply to children whose
parent, parents, or guardian hold genuine and sincere
religious beliefs which are contrary to the practices
herein required, and no certificate shall be required
as a prerequisite to such children being admitted or
received into school or attending school.
Because the statutory exception of § 2164(9) is for persons
whose opposition to immunizations stems from genuine and sincere
"religious" beliefs, it does not extend to persons whose views
are founded upon, for instance, "medical or purely moral
considerations," Sherr v. Northport-East Northport Union Free
School Dist., 672 F. Supp. 81,92 (E.D.N.Y. 1987), "scientific
and secular theories," or "philosophical and personal" beliefs.
See Mason v. General Brown Cent. School Dist., 851 F.2d 47,
51-52 (2d Cir. 1988). Thus, the Court must first determine
whether plaintiffs' purported beliefs are religious, and only if
they are, determine whether those beliefs are genuinely and