N.Y. Education Law § 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.

(f) No educational institution shall require an individual to provide

a copy of his or her criminal history record that he or she obtained

pursuant to the rules and regulations of the division of criminal

justice services.

(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.