§ 313 — Unfair educational practices

New York § 313

• Jurisdiction: New York
• Law EDN: Education
• Title 1: General Provisions Article 1 Short Title and Definitions (§§
• Art. 7: Commissioner of Education

Text

§ 313. Unfair educational practices. (1) Declaration of policy. (a)\nIt is hereby declared to be the policy of the state that the American\nideal of equality of opportunity requires that students, otherwise\nqualified, be admitted to educational institutions and be given access\nto all the educational programs and courses operated or provided by such\ninstitutions without regard to race, color, sex, religion, creed,\nmarital status, age, sexual orientation as defined in section two\nhundred ninety-two of the executive law, gender identity or expression\nas defined in section two hundred ninety-two of the executive law, or\nnational origin, except that, with regard to religious or denominational\neducational institutions, students, otherwise qualified, shall have the\nequal opportunity to attend therein without discrimination because of\nrace, color, sex, marital status, age, sexual orientation as defined in\nsection two hundred ninety-two of the executive law, gender identity or\nexpression as defined in section two hundred ninety-two of the executive\nlaw, or national origin. It is a fundamental American right for members\nof various religious faiths to establish and maintain educational\ninstitutions exclusively or primarily for students of their own\nreligious faith or to effectuate the religious principles in furtherance\nof which they are maintained. Nothing herein contained shall impair or\nabridge that right.\n (b) It is hereby further declared to be the policy of the state that\nindividuals who withdraw from postsecondary educational institutions in\norder to serve on active duty in the armed forces of the United States\nin time of war and who seek to return to such educational institutions\nshall be allowed to do so without the imposition of any penalty,\nacademic or financial, for their withdrawal, and that any express or\nimplied contractual provision which imposes any such penalty shall be\nvoid and unenforceable as against public policy.\n (2) Definitions. (a) Educational institution means any educational\ninstitution of post-secondary grade subject to the visitation,\nexamination or inspection by the state board of regents or the state\ncommissioner of education and any business or trade school in the state.\n (b) Religious or denominational educational institution means an\neducational institution which is operated, supervised or controlled by a\nreligious or denominational organization and which has certified to the\nstate commissioner of education that it is a religious or denominational\neducational institution.\n (3) Unfair educational practices. It shall be an unfair educational\npractice for an educational institution after September fifteenth,\nnineteen hundred forty-eight:\n (a) To exclude or limit or otherwise discriminate against any person\nor persons seeking admission as students to such institution or to any\neducational program or course operated or provided by such institution\nbecause of race, religion, creed, sex, color, marital status, age,\nsexual orientation as defined in section two hundred ninety-two of the\nexecutive law, gender identity or expression as defined in section two\nhundred ninety-two of the executive law, or national origin; except that\nnothing in this section shall be deemed to affect, in any way, the right\nof a religious or denominational educational institution to select its\nstudents exclusively or primarily from members of such religion or\ndenomination or from giving preference in such selection to such members\nor to make such selection of its students as is calculated by such\ninstitution to promote the religious principles for which it is\nestablished or maintained. Nothing herein contained shall impair or\nabridge the right of an independent institution, which establishes or\nmaintains a policy of educating persons of one sex exclusively, to admit\nstudents of only one sex.\n (b) To penalize any individual because he or she has initiated,\ntestified, participated or assisted in any proceedings under this\nsection.\n (c) To accept any endowment or gift of money or property conditioned\nupon teaching the doctrine of supremacy of any particular race.\n (d) With respect to any individual who withdraws from attendance to\nserve on active duty in the armed forces of the United States in time of\nwar, including any individual who withdrew from attendance on or after\nAugust second, nineteen hundred ninety to serve on active duty in the\narmed forces of the United States in the Persian Gulf conflict: (i) to\ndeny or limit the readmission of such individual to such institution or\nto any educational program or course operated or provided by such\ninstitution because of such withdrawal from attendance or because of the\nfailure to complete any educational program or course due to such\nwithdrawal; (ii) to impose any academic penalty on such person because\nof such withdrawal or because of the failure to complete any educational\nprogram or course due to such withdrawal; (iii) to reduce or eliminate\nany financial aid award granted to such individual which could not be\nused, in whole or part, because of such withdrawal or because of the\nfailure to complete any educational program or course due to such\nwithdrawal; or (iv) to fail to provide a credit or refund of tuition and\nfees paid by such individual for any semester, term or quarter not\ncompleted because of such withdrawal or because of the failure to\ncomplete any program or course due to such withdrawal.\n (e) It shall not be an unfair educational practice for any educational\ninstitution to use criteria other than race, religion, creed, sex,\ncolor, marital status, age, sexual orientation as defined in section two\nhundred ninety-two of the executive law, gender identity or expression\nas defined in section two hundred ninety-two of the executive law, or\nnational origin in the admission of students to such institution or to\nany of the educational programs and courses operated or provided by such\ninstitution.\n (f) No educational institution shall require an individual to provide\na copy of his or her criminal history record that he or she obtained\npursuant to the rules and regulations of the division of criminal\njustice services.\n (4) Certification of religious and denominational institutions. An\neducational institution operated, supervised or controlled by a\nreligious or denominational organization may, through its chief\nexecutive officer, certify in writing to the commissioner that it is so\noperated, controlled or supervised, and that it elects to be considered\na religious or denominational educational institution, and it thereupon\nshall be deemed such an institution for the purposes of this section.\n (5) Procedure. (a) Any person seeking admission as a student who\nclaims to be aggrieved by an alleged unfair educational practice,\nhereinafter referred to as the petitioner, may himself, or by his parent\nor guardian, make, sign and file with the commissioner of education a\nverified petition which shall set forth the particulars thereof and\ncontain such other information as may be required by the commissioner.\nThe commissioner shall thereupon cause an investigation to be made in\nconnection therewith; and after such investigation if he shall determine\nthat probable cause exists for crediting the allegations of the\npetition, he shall attempt by informal methods of persuasion,\nconciliation or mediation to induce the elimination of such alleged\nunfair educational practice.\n (b) Where the commissioner has reason to believe that an applicant or\napplicants have been discriminated against, except that preferential\nselection by religious or denominational institutions of students of\ntheir own religion or denomination shall not be considered an act of\ndiscrimination, he may initiate an investigation on his own motion.\n (c) The commissioner shall not disclose what takes place during such\ninformal efforts at persuasion, conciliation or mediation nor shall he\noffer in evidence in any proceeding the facts adduced in such informal\nefforts.\n (d) A petition pursuant to this section must be filed with the\ncommissioner within one year after the alleged unfair educational\npractice was committed.\n (e) If such informal methods fail to induce the elimination of the\nalleged unfair educational practice, the commissioner shall have power\nto refer the matter to the board of regents which shall issue and cause\nto be served upon such institution, hereinafter called the respondent, a\ncomplaint setting forth the alleged unfair educational practice charged\nand a notice of hearing before the board of regents, at a place therein\nfixed to be held not less than twenty days after the service of said\ncomplaint.\n Any complaint issued pursuant to this section must be issued within\ntwo years after the alleged unfair educational practice was committed.\n (f) The respondent shall have the right to answer the original and any\namended complaint and to appear at such hearing by counsel, present\nevidence and examine and cross-examine witnesses.\n (g) The commissioner and the board of regents shall have the power to\nsubpoena witnesses, compel their attendance, administer oaths, take\ntestimony under oath and require the production of evidence relating to\nthe matter in question before it or them. The testimony taken at the\nhearing, which shall be public shall be under oath and shall be reduced\nto writing and filed with the board of regents.\n (h) After the hearing is completed the board of regents shall file an\nintermediate report which shall contain its findings of fact and\nconclusions upon the issues in the proceeding. A copy of such report\nshall be served on the parties to the proceeding. Any such party within\ntwenty days thereafter, may file with the regents exceptions to the\nfindings of fact and conclusions, with a brief in support thereof, or\nmay file a brief in support of such findings of fact and conclusions.\n (i) If, upon all the evidence, the regents shall determine that the\nrespondent has engaged in an unfair educational practice, the regents\nshall state their findings of fact and conclusions and shall issue and\ncause to be served upon such respondent a copy of such findings and\nconclusions and an order requiring the respondent to cease and desist\nfrom such unfair educational practice, or such other order as they deem\njust and proper.\n (j) If, upon all the evidence, the regents shall find that a\nrespondent has not engaged in any unfair educational practice, the\nregents shall state their findings of fact and conclusions and shall\nissue and cause to be served on the petitioner and respondent, a copy of\nsuch findings and conclusions, and an order dismissing the complaint as\nto such respondent.\n (6) Judicial review and enforcement. (a) Whenever the board of regents\nhas issued an order as provided in this section it may apply to the\nsupreme court for the enforcement of such order by a proceeding brought\nin the supreme court within the third judicial district. The board of\nregents shall file with the court a transcript of the record of its\nhearing, and the court shall have jurisdiction of the proceeding and of\nthe questions determined therein, and shall have power to make an order\nannulling or confirming, wholly or in part, or modifying the\ndetermination reviewed. The order of the supreme court shall be subject\nto review by the appellate division of the supreme court and the court\nof appeals, upon the appeal of any party to the proceeding, in the same\nmanner and with the same effect as provided on an appeal from a final\njudgment made by the court without a jury.\n (b) Any party to the proceeding, aggrieved by a final order of the\nboard of regents, may obtain a judicial review thereof by a proceeding\nunder article seventy-eight of the civil practice law and rules, which\nshall be brought in the appellate division of the supreme court for the\nthird judicial department.\n (7) Regents empowered to promulgate rules and regulations. The regents\nfrom time to time may adopt, promulgate, amend or rescind rules and\nregulations to effectuate the purposes and provisions of this section.\n (8) The commissioner shall include in his annual report to the\nlegislature (1) a resume of the nature and substance of the cases\ndisposed of through public hearings, and (2) recommendations for further\naction to eliminate discrimination in education if such is needed.\n