NY Educ L § 313 (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 7 - Commissioner of Education 313 - Unfair Educational Practices.

§ 313. Unfair  educational  practices. (1) Declaration of policy.  (a) It is hereby declared to be the policy of the state  that  the  American ideal  of  equality  of  opportunity  requires  that students, otherwise qualified, be admitted to educational institutions and be  given  access to all the educational programs and courses operated or provided by such institutions  without  regard  to  race,  color,  sex,  religion, creed, marital status, age,  sexual  orientation  as  defined  in  section  two hundred  ninety-two  of the executive law, gender identity or expression as defined in section two hundred ninety-two of the  executive  law,  or national origin, except that, with regard to religious or denominational educational  institutions, students, otherwise qualified, shall have the equal opportunity to attend therein without  discrimination  because  of race,  color, sex, marital status, age, sexual orientation as defined in section two hundred ninety-two of the executive law, gender identity  or expression as defined in section two hundred ninety-two of the executive law,  or national origin. It is a fundamental American right for members of various  religious  faiths  to  establish  and  maintain  educational institutions   exclusively  or  primarily  for  students  of  their  own religious faith or to effectuate the religious principles in furtherance of which they are maintained. Nothing herein contained shall  impair  or abridge that right.  (b)  It  is hereby further declared to be the policy of the state that individuals who withdraw from postsecondary educational institutions  in order  to  serve on active duty in the armed forces of the United States in time of war and who seek to return to such  educational  institutions shall  be  allowed  to  do  so  without  the  imposition of any penalty, academic or financial, for their withdrawal, and  that  any  express  or implied  contractual  provision  which imposes any such penalty shall be void and unenforceable as against public policy.  (2) Definitions. (a) Educational  institution  means  any  educational institution   of   post-secondary   grade  subject  to  the  visitation, examination or inspection by the state board of  regents  or  the  state commissioner of education and any business or trade school in the state.  (b)  Religious  or  denominational  educational  institution  means an educational institution which is operated, supervised or controlled by a religious or denominational organization and which has certified to  the state commissioner of education that it is a religious or denominational educational institution.  (3)  Unfair  educational  practices. It shall be an unfair educational practice for  an  educational  institution  after  September  fifteenth, nineteen hundred forty-eight:  (a)  To  exclude or limit or otherwise discriminate against any person or persons seeking admission as students to such institution or  to  any educational  program  or course operated or provided by such institution because of race, religion,  creed,  sex,  color,  marital  status,  age, sexual  orientation  as defined in section two hundred ninety-two of the executive law, gender identity or expression as defined in  section  two hundred ninety-two of the executive law, or national origin; except that nothing in this section shall be deemed to affect, in any way, the right of  a  religious or denominational educational institution to select its students exclusively or primarily  from  members  of  such  religion  or denomination or from giving preference in such selection to such members or  to  make  such  selection  of  its students as is calculated by such institution  to  promote  the  religious  principles  for  which  it  is established  or  maintained.  Nothing  herein  contained shall impair or abridge the right of an independent institution,  which  establishes  or maintains a policy of educating persons of one sex exclusively, to admit students of only one sex.  (b)  To  penalize  any  individual  because  he  or she has initiated, testified, participated  or  assisted  in  any  proceedings  under  this section.  (c)  To  accept any endowment or gift of money or property conditioned upon teaching the doctrine of supremacy of any particular race.  (d) With respect to any individual who withdraws  from  attendance  to serve on active duty in the armed forces of the United States in time of war,  including  any individual who withdrew from attendance on or after August second, nineteen hundred ninety to serve on active  duty  in  the armed  forces  of the United States in the Persian Gulf conflict: (i) to deny or limit the readmission of such individual to such institution  or to  any  educational  program  or  course  operated  or provided by such institution because of such withdrawal from attendance or because of the failure to complete any  educational  program  or  course  due  to  such withdrawal;  (ii)  to impose any academic penalty on such person because of such withdrawal or because of the failure to complete any educational program or course due to such withdrawal; (iii) to reduce  or  eliminate any  financial  aid  award granted to such individual which could not be used, in whole or part, because of such withdrawal  or  because  of  the failure  to  complete  any  educational  program  or  course due to such withdrawal; or (iv) to fail to provide a credit or refund of tuition and fees paid by such individual for  any  semester,  term  or  quarter  not completed  because  of  such  withdrawal  or  because  of the failure to complete any program or course due to such withdrawal.  (e) It shall not be an unfair educational practice for any educational institution to use criteria  other  than  race,  religion,  creed,  sex, color, marital status, age, sexual orientation as defined in section two hundred  ninety-two  of the executive law, gender identity or expression as defined in section two hundred ninety-two of the  executive  law,  or national  origin  in the admission of students to such institution or to any of the educational programs and courses operated or provided by such institution.  (4) Certification of religious  and  denominational  institutions.  An educational   institution   operated,  supervised  or  controlled  by  a religious  or  denominational  organization  may,  through   its   chief executive  officer, certify in writing to the commissioner that it is so operated, controlled or supervised, and that it elects to be  considered a  religious or denominational educational institution, and it thereupon shall be deemed such an institution for the purposes of this section.  (5) Procedure. (a) Any person  seeking  admission  as  a  student  who claims  to  be  aggrieved  by  an  alleged  unfair educational practice, hereinafter referred to as the petitioner, may himself, or by his parent or guardian, make, sign and file with the commissioner  of  education  a verified  petition  which  shall  set  forth the particulars thereof and contain such other information as may be required by  the  commissioner. The  commissioner  shall  thereupon cause an investigation to be made in connection therewith; and after such investigation if he shall determine that  probable  cause  exists  for  crediting  the  allegations  of  the petition,   he   shall   attempt  by  informal  methods  of  persuasion, conciliation or mediation to induce  the  elimination  of  such  alleged unfair educational practice.  (b)  Where the commissioner has reason to believe that an applicant or applicants have been discriminated  against,  except  that  preferential selection  by  religious  or  denominational institutions of students of their own religion or denomination shall not be  considered  an  act  of discrimination, he may initiate an investigation on his own motion.  (c)  The  commissioner shall not disclose what takes place during such informal efforts at persuasion, conciliation or mediation nor  shall  he  offer  in  evidence in any proceeding the facts adduced in such informal efforts.  (d)  A  petition  pursuant  to  this  section  must  be filed with the commissioner within  one  year  after  the  alleged  unfair  educational practice was committed.  (e)  If  such  informal  methods fail to induce the elimination of the alleged unfair educational practice, the commissioner shall  have  power to  refer the matter to the board of regents which shall issue and cause to be served upon such institution, hereinafter called the respondent, a complaint setting forth the alleged unfair educational practice  charged and  a notice of hearing before the board of regents, at a place therein fixed to be held not less than twenty days after  the  service  of  said complaint.   Any  complaint  issued  pursuant to this section must be issued within two years after the alleged unfair educational practice was committed.  (f) The respondent shall have the right to answer the original and any amended complaint and to appear at  such  hearing  by  counsel,  present evidence and examine and cross-examine witnesses.  (g)  The commissioner and the board of regents shall have the power to subpoena witnesses, compel  their  attendance,  administer  oaths,  take testimony  under oath and require the production of evidence relating to the matter in question before it or them. The  testimony  taken  at  the hearing,  which shall be public shall be under oath and shall be reduced to writing and filed with the board of regents.  (h) After the hearing is completed the board of regents shall file  an intermediate  report  which  shall  contain  its  findings  of  fact and conclusions upon the issues in the proceeding. A  copy  of  such  report shall  be served on the parties to the proceeding. Any such party within twenty days thereafter, may file with  the  regents  exceptions  to  the findings  of  fact  and conclusions, with a brief in support thereof, or may file a brief in support of such findings of fact and conclusions.  (i) If, upon all the evidence, the regents shall  determine  that  the respondent  has  engaged  in an unfair educational practice, the regents shall state their findings of fact and conclusions and shall  issue  and cause  to  be  served  upon  such respondent a copy of such findings and conclusions and an order requiring the respondent to  cease  and  desist from  such unfair educational practice, or such other order as they deem just and proper.  (j) If,  upon  all  the  evidence,  the  regents  shall  find  that  a respondent  has  not  engaged  in  any  unfair educational practice, the regents shall state their findings of fact  and  conclusions  and  shall issue and cause to be served on the petitioner and respondent, a copy of such  findings and conclusions, and an order dismissing the complaint as to such respondent.  (6) Judicial review and enforcement. (a) Whenever the board of regents has issued an order as provided in this section  it  may  apply  to  the supreme  court for the enforcement of such order by a proceeding brought in the supreme court within the third judicial district.  The  board  of regents  shall  file  with  the  court a transcript of the record of its hearing, and the court shall have jurisdiction of the proceeding and  of the  questions determined therein, and shall have power to make an order annulling  or  confirming,  wholly  or  in  part,   or   modifying   the determination  reviewed. The order of the supreme court shall be subject to review by the appellate division of the supreme court and  the  court of  appeals, upon the appeal of any party to the proceeding, in the same manner and with the same effect as provided on an appeal  from  a  final judgment made by the court without a jury.  (b)  Any  party  to  the proceeding, aggrieved by a final order of the board of regents, may obtain a judicial review thereof by  a  proceeding under  article  seventy-eight of the civil practice law and rules, which shall be brought in the appellate division of the supreme court for  the third judicial department.  (7) Regents empowered to promulgate rules and regulations. The regents from  time  to  time  may  adopt, promulgate, amend or rescind rules and regulations to effectuate the purposes and provisions of this section.  (8) The commissioner  shall  include  in  his  annual  report  to  the legislature  (1)  a  resume  of  the  nature  and substance of the cases disposed of through public hearings, and (2) recommendations for further action to eliminate discrimination in education if such is needed.