Appeals court considers whether West Texas A&M drag show was unconstitutionally banned

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A federal appeals court considering whether West Texas A&M University’s president violated the First Amendment when he canceled a campus drag show last year focused many of their questions Monday on a U.S. Supreme Court ruling that upheld campus non-discrimination policies.

But the panel of three judges used that 2010 case — which said universities can require groups to admit LGBTQ+ students — to suggest that school officials could also ban drag shows because some people find the performances offensive to women.

A lawyer representing a group of West Texas A&M students who’ve twice attempted to host a drag show on campus argued before the 5th U.S. Circuit Court of Appeals Monday that President Walter Wendler discriminated based on viewpoint and censored speech when canceling the performances.

In March 2023, Wendler banned drag shows in response to a student fundraiser that featured drag performers. The president argued the performances “denigrate and demean women,” and shouldn’t be allowed on the public university’s campus.

In September, a federal judge said Wendler acted within his authority to cancel the drag show. In his opinion, U.S. District Judge Matthew Kacsmaryk wrote, at “this point in Free Speech jurisprudence, it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”

Last month, students with WT Spectrum, the student group at the university, hoped to hold another drag show on campus — to show support for the LGBTQ+ community in a staunchly conservative corner of Texas.

With Wendler’s campus-wide ban still in place, the Supreme Court declined to intervene and the president again ordered the fundraiser from taking place.

The panel of judges hearing the appeal Monday were James Dennis, James Ho and Leslie Southwick.

Many of their questions centered around Christian Legal Society v. Martinez, a case in which the Supreme Court upheld a policy of the University of California, Hastings College of the Law, that bars student groups from excluding members based on status or beliefs.

In 2010, the Supreme Court affirmed that Hastings’ policy does not violate the First Amendment rights of CLS, a group of students that wanted to be officially recognized on campus while not allowing people who engage in “unrepentant homosexual conduct” from joining.

The 5th Circuit judges Monday seemed to suggest that Wendler’s ban was no different from the policy at the center of the 2010 Supreme Court case. One of the judges, who didn't identify themselves before speaking, asked if plaintiffs intended to use the case in question to overturn CLS.

“Maybe we should overturn CLS?” one of three judges said. “Many people would like CLS overturned.”

Ho equated the policy upheld in CLS with Wendler’s drag ban. He said both intend to make everyone feel included, but the policies have the consequence of targeting one group. In CLS’ case, he said that Christians were singled out on Hastings’ campus for not allowing LGBTQ+ individuals to join. Ho said that previous groups on Hastings’ campus could exclude members, but CLS was singled out by the university’s non-discrimination policy.

JT Morris, senior attorney for the Foundation for Individual Rights and Expression who represented the students, argued that the judges were comparing “apples to oranges” between the two cases.

Morris argued CLS is about a content-neutral policy, while Wendler was clearly discriminating based on viewpoint.

“The First Amendment does not allow the government to use the subjective term ‘offensive’ to restrict speech,” Morris said.

Joseph N. Mazzara, a lawyer with the Texas Attorney General’s Office who represented Wendler, said the students had not suffered any injury as a result of the no-drag policy because there was no future event featuring drag performers planned. Additionally, Mazzara said Wendler’s policy carried no criminal penalties and students could host drag performances off campus.

Mazzara said Wendler's ban was not a free speech violation, but rather it was akin to banning certain conduct, like skateboarding on the grounds of a monument. He said drag shows constituted conduct, not speech.

“They're able to do everything they want to do, they're able to say all the speech they want to [say],” Mazzara said, referring to the student group WT Spectrum. “They just can't do this one particular thing in this one particular place.”

A judge asked Mazzara how the university would have treated drag shows put on by other student groups, such as a fraternity. The judges seemed to agree with Mazzara that Wendler’s restriction did not target a specific viewpoint.

“If a Christian legal group wanted to have a ‘Drag for Jesus’ event that would also be banned,” Mazzara said.

One judge suggested that some drag shows are offensive to the transgender community, and thus Wendler’s ban would equally protect that population from offensive performances.

Allison Marie Collins, another lawyer from the Attorney General’s Office representing other defendants named in the lawsuit, argued the appellate judges should not impose any restrictions on Texas A&M system Chancellor John Sharp or West Texas A&M Vice President for Student Affairs Christopher Thomas. She argued an injunction against Sharp or Thomas would be overbroad, because it’s clear that only Wendler has acted to stop these shows.

“Neither Chancellor Sharp nor Dr. Thomas have remotely engaged in viewpoint discrimination, exclusion from a public forum or a prior restraint complaint to speech,” Collins said.

In his rebuttal, Morris argued the plaintiffs have standing over Sharp because he has the authority over Wendler to put an end to this restriction on free speech.

“He has the authority to do what's best for the campus,” Morris said of Sharp. “He should have put an end to this prior restraint, which shouldn’t have lasted a day, and has now lasted a year.”

Disclosure: Texas A&M University and West Texas A&M University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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