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SECTION 313
Unfair educational practices
Education (EDN) CHAPTER 16, TITLE 1, ARTICLE 7
§ 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.