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FARINA v. BOARD OF EDUC. OF CITY OF NEW YORK

October 12, 2000

LUIGI AND FRANCESCA FARINA, PLAINTIFFS
V.
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

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 six diseases.

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.

I

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 objection.

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 immunizations.

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 added:

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 an exemption.
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 consideration.

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."

1st COR 6:19

"If any man defiles the Temple of God, him shall God destroy, for the Temple of God is holy, which ye are."

1st COR 3:17

"That your faith should not stand in the wisdom of men, but in the power of God."

1st COR 2:5

II

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 council.
(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 sincerely held.

The Court must also take care to avoid making impermissible assessments of the credibility of the beliefs themselves. See International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir. 1981). The beliefs need not be consistent with the dogma of any organized religion, whether or not the plaintiffs belong to any recognized religious organization. Sherr, 672 F. Supp. at 91. Thus, Denise Sasso's questions to Mrs. Farina about the Farinas' religious affiliation, and her statements to Mrs. Farina that she obtain a letter from the Roman Catholic diocese or her parish were misplaced. The Farinas had no obligation to provide documentation from the ...


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