May 16, 2016
New York City. If you don’t live under a rock or in a remote island culture, those three words probably conjure up an image: metropolitan, densely populated, highly diverse, culturally rich, and liberal to a fault – except for Wall Street, of course. Those are the sorts of impressions people tend to have when they think of New York City. And they are all correct, which is why I have made New York my home for the past 29 years.
But I’ll bet there’s one thing most people don’t think of when they think of New York City. I’ll bet even most of its inhabitants don’t think of New York as the home of blatant first amendment violations in the form of government-sanctioned tribunals with the power to interrogate American citizens with regard to their religious beliefs and pass judgment on those beliefs.
How can this be, you say? Didn’t that sort of thing go out with the Spanish Inquisition, or the Puritans at least? Wasn’t freedom of religion one of the bedrock principles of the Founding Fathers? Doesn’t the Constitution, the supreme law of the land, explicitly include in its very first amendment the promise that government will not impede the free exercise of religion?
Yes, yes, and yes.
So how is it, then, that I spent last Friday morning on Staten Island protesting along with more than twenty other adults and a handful of youngsters outside a New York City public school, PS 373R, the location for three hearings wherein Joanne Borland, an employee of the NYC Department of Education, would be interrogating parents about their religious beliefs in order to judge whether those beliefs were “genuine and sincere”?
The parents in question object to the practice of vaccination on the basis of their religious beliefs, and in New York State, unlike almost everywhere else in the United States, when you object to vaccination on religious grounds, you can’t just fill out a form, get it notarized, and hand it in to your local health department. New York requires that parents write a letter stating their objections and turn it in to their local school district.
That’s not so different from the rest of the country (except California, West Virginia, and Mississippi which have no religious exemption at all), right?
Here’s where everything goes off the rails: Unlike the vast majority of states, New York State law allows the local school district to judge that letter – and the beliefs behind it. In other words, it’s not enough to simply have those beliefs, one may have to prove – to the satisfaction of a government bureaucrat – that those beliefs are “genuine and sincere.”
I don’t know about anyone else, but when I first heard about this clause in New York State’s vaccination law I was dumbfounded. In this day and age, there are government bureaucrats with the legal power to judge other peoples’ religious beliefs? How can that possibly be constitutional?
What if the bureaucrat is an atheist and can’t understand how anyone could believe in something they see as the equivalent of The Flying Spaghetti Monster? Or a member of a different religion which holds that all who are not members of that religion are “infidels”? Or, perhaps the worst-case scenario, a member of the same religion who does not hold the same beliefs with regard to vaccination? Is there anyone who could seriously think that the bureaucrat’s own beliefs are not going to color the proceedings? Isn’t the determination of “sincerity” likely to be influenced as much by the interrogator’s religious beliefs as the interrogatees’?
School districts all over the state differ dramatically in their application of this law, meaning that a family who would have no problem with a school district in one area of the state can be given an extremely hard time in another area – and even have that exemption denied altogether. That is simply wrong. People who have religious beliefs that conflict with the practice of vaccination are entitled to religious exemption. That’s the law. To then turn around and say “unless a local bureaucrat vetoes it,” is to guarantee that the application of the law will be “arbitrary and capricious,” where a legal definition of capricious is “unpredictable and subject to whim.”
When a judge makes a legal decision that is considered arbitrary and capricious, that is grounds for appeal of that decision. When a law is enacted whose application must by its very nature be arbitrary and capricious, that is a bad law.
Nowhere in the state of New York is the application of this particular law more arbitrary and capricious than it is in the New York City public school system.
With about a million students enrolled, New York City is the largest school district in the country. Unlike most of the school districts in the state, the New York City Department of Education requires that parents write detailed letters about their religious beliefs, often running to seven or eight typewritten pages, as was recently the case for Peter DiPaola and his wife, parents of a six-year-old child on the autism spectrum whose religious exemption was recently denied. The DiPaolas’ letter had been accompanied by a letter from their state senator, Andrew Lanza, and another from the pastor of their Catholic church. The DiPaolas exemption request was denied, as almost all NYC exemptions are these days. The DiPaolas appealed the decision, and a hearing was scheduled. I spoke with the DiPaolas outside the school as they waited patiently for their hearing, the third interview scheduled for that day.
Dina Check, mother of a child whose religious exemption was denied several years ago by the NYC public school system simply because her doctor had supplied a letter stating that the child’s health was such that any vaccination would be detrimental to her health, was also present at the demonstration. While Mary Check’s health would indeed be likely to be severely impacted by any vaccine, it should be obvious to anyone that that fact has no bearing on the sincerity of her mother’s religious convictions. Dina is a devout Catholic, and one can tell from even short conversation with her that her religious convictions are deeply felt. To deny Mary’s religious exemption because the child also happens to have significant health concerns making vaccination unwise seems to be the very definition of arbitrary and capricious. (By the way, when both religious and medical concerns do exist in New York, it makes sense to go for the religious exemption because medical exemptions are very hard to get doctors to sign off on, they are vaccine-specific, and they have to be renewed every year.)
Abdul Nahshal, a Muslim, who says “We left Yemen to get away from religious persecution,” was at the demonstration with his six-year-old daughter who was by far the oldest child present. After all, at six most children are in school. That was not the case for Abdul’s daughter, however, because Abdul’s application for a religious exemption for her was recently denied just like the DiPaolas, but in his case the appeal was also denied. He was told by his daughter’s school in Bay Ridge, Brooklyn that she would be excluded after May 6, so she has been out of school since last Monday.
All told, the demonstration gathered an impressive cross-section of New York City people who are keen to “protect religious vaccine exemptions” as one sign read, including Catholics, Muslims, an ultra-orthodox rabbi based in Brooklyn, and people who don’t belong to any organized religion at all as well as three obviously pregnant women, a sprinkling of toddlers, and a number of parents of children with autism. Despite being specifically invited, no press showed up, not even the local newspaper, the Staten Island Advance.
It was even more surprising that no press showed up when, after an hour or so, we were told that the school had been put on lockdown – no one could go in or out – because of the oh-so-threatening (and very quiet) group of parents standing peacefully outside the front gates. At one point, there were two police cars and five officers, while a delivery van filled with cafeteria supplies was turned away. Apparently, our demonstration was scary enough to waste police resources and frighten students and teachers, but not worthy enough to mention in the press.
All of the events on Friday served to make it very clear that Bill DiBasio, NYC’s mayor since 2014, is not interested in fixing or mitigating the damage caused by the broken NYC religious exemption process. The average application for a religious exemption in New York City takes many months to process.
Five years ago, my own son’s application took more than six months, despite the fact that my daughter already had a religious exemption and my religious beliefs have not changed from one child to the other.
All exemption applications go through one office, the DOE’s Immunization Program Office of School Health, headed by a woman named Julia Sykes. This office is staffed by people like Joanne Borland and Raymond Johnson (who denied the Nahshal’s exmption), whose job it is to read exemption letters and rule on their sincerity. When the exemption letter is denied, as almost all are these days, the parents can appeal the decision, whereupon a hearing will be scheduled at which the parents can expect to be grilled about their religious convictions by the same bureaucrat who denied their exemption. As John Gilmore of the Autism Action Network put it, New York City is the only place in the country that requires an Inquisition Department in order to for people to exercise their legal right to a religious exemption.
Rita Palma of My Kids, My Choice, while not a New York City resident, has firsthand experience with the arbitrary and capricious application of religious exemptions in New York State. She and her husband were subjected to questions about their food choices and vitamin usage, as well as questions about their religious faith, when they appealed their exemption denial multiple times.
As a result of their horrid treatment at the hands of a board of education, including the district superintendent, the board president, and the commissioner of education, Rita vowed that she would change the way New York treats parents seeking exemptions. She began My Kids, My Choice in order to help other parents navigate their way through the system and is a tireless advocate for vaccine choice with the New York State legislature. Since the submission of a bill to revoke the religious exemption in New York State by Senator Brad Hoylman last year (S6017), she and John Gilmore, with the help of Maria Gavriel and Aimee Villella McBride, have been running “Lobbying 101” sessions all over the state in order to empower the many people applying for religious exemptions to make the changes they wish to see.
Unlike California, which recently revoked their personal belief exemptions, New York requires nearly all of the CDC-recommended vaccines in order to attend school, preschool, or day care. These include DTaP (does not prevent transmission of pertussis, tetanus is not contagious), polio (does not prevent transmission of polio), MMR, hepatitis B (sexually transmitted), varicella (directly responsible for the rise in shingles cases in a much younger population than in the past), meningococcal conjugate (discussed in the next paragraph), Hib, and pneumococcal conjugate. The only CDC-recommended vaccines not included are rotavirus, hepatitis A, influenza and HPV (also sexually transmitted and the vaccine is unlikely to make a dent in the death rate from cervical cancer). There is an attempt every year to mandate the HPV vaccine statewide, but so far it has been defeated.
In a huge overstepping of their authority, the New York City Department of Health followed outgoing mayor Michael Bloomberg’s suggestion and decided to mandate flu vaccines for NYC children. In December of last year, just before the mandate was to go into effect, it was struck down by Judge Manuel J. Mendez who determined that in the absence of a public health emergency the City did not have the authority to mandate the flu vaccine. In response, Assemblyman Jeffrey Dinowitz introduced a state bill to mandate flu vaccines.
Flu vaccines are available for virtually all city parents who want their children to be vaccinated, but mandating them for day care and preschool just doesn’t make sense. As the Cochrane Collaboration has noted, there is no evidence that inactivated flu vaccines are at all effective in children under two. In addition, the live attenuated virus version which is generally recommended for schoolchildren who don’t have asthma was not effective against H1N1 in 2013-14, the strain most likely to be harmful in that age range. most still have a full dose of the mercury preservative Thimerosal, the flu is rarely problematic in children who are not infants, and a mainstream study found that in children with asthma – the population supposed to be most “at risk” from complications of the flu – the vaccine was associated with a three times higher rate of hospitalization from flu-related complications than children with asthma who had not been vaccinated.
Last year, a bill slipped through the NY State legislature mandating the meningitis vaccine for all 7th and 12th graders who do not have religious or medical exemptions. No matter how you feel about vaccines, this is another vaccine that simply doesn’t make sense to mandate. The vaccines are already available to those who want them, the disease which they are meant to prevent struck fewer than 1000 people in the whole country in 2014 and just barely qualifies as contagious (more than 98% of cases are not part of an “outbreak”), and the vaccines have a serious adverse event occurrence of 1% or more when given to the age range for which they are recommended. Mandating these vaccines makes no economic or moral sense.
Chronic health conditions related to immune dysfunction such as life-threatening allergies, asthma, type 1 diabetes, as well as related neurological conditions such as autism and ADHD, abound today and have, coincidentally, been rising as we add to the CDC-recommended vaccine schedule. The fact that vaccines are preventative treatments given to healthy children that are designed to alter the immune system should be on everyone’s radar and a point of major concern.
But point out any or all of these obvious, common-sense facts and ask why you have to give your healthy child medical treatments that carry a small but real risk of death, and a not-so-small risk of permanent disability, that have so little possible benefit to society, much less the child, and you are suddenly an enemy of the state and a baby-killer. And if you happen to believe that it is your God-given duty to protect the children He gave you with everything you’ve got, including the intelligence He gave you, you’d better be prepared for a government employee to tell you that your religious beliefs are not good enough.
For someone who has resided nearly my entire adult life in New York City, appreciating all its finer points, it’s monumentally disappointing that a place known for its rich religious diversity is the site of such blatant disregard for the constitutional right to free exercise of religion – and also happens to be among the very worst places in the country for caring Thinking Parents and their children.
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