2023 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.