On June 30, 2023, the U.S. Supreme Court issued a decision in connection with 303 Creative LLC et al. v. Elenis et al. In 303 Creative, the U.S. Supreme Court held that the First Amendment prohibits the State of Colorado from using its public accommodation law to force a website designer to create speech (expressive designs) with which she did not agree.
On July 31, 2023, the New Jersey Division on Civil Rights issued guidance explaining how it will enforce the New Jersey Law Against Discrimination following the U.S. Supreme Court’s decision in 303 Creative. DCR’s guidance explains that the ruling in 303 Creative will not affect how the Law Against Discrimination applies to the vast majority of places of public accommodation, which include K-12 public schools in New Jersey. In addition, based on 303 Creative, a place of public accommodation will not be exempt from the Law Against Discrimination unless it can specifically establish:
- Its creative services are “original” and “customized and tailored” for each customer.
- The creation is “expressive” and expresses the creator’s own First Amendment-protected speech.
- The public accommodation’s refusal to provide the creative service to a customer is based on the message it conveys, not the customer’s identity or protected characteristic standing alone.
For additional information, please contact the New Jersey School Boards Association’s Legal and Labor Relations Department at 609-278-5279. Please contact your board attorney for official legal advice specific to your school district.