Texas students ask Supreme Court to block university’s drag show ban

Drag queen Dani Knighten, from Austin, Texas performs during the Vanguard drag show at the Swan Dive nightclub on April 19, 2023.

Students at a west Texas university are asking the Supreme Court to take emergency action to allow them to hold a charity drag performance at their school later this month, claiming that an order barring drag events on campus violates their constitutional rights.

West Texas A&M University President Walter Wendler last year canceled a charity drag event organized by members of Spectrum WT, a student-led LGBTQ organization. Wendler in an email to the university community said drag shows are “derisive, divisive and demoralizing misogyny, no matter the stated intent.”

“Does a drag show preserve a single thread of human dignity? I think not,” Wendler wrote in the March 21, 2023, email, which was also published on his personal blog. His message — which compared drag to blackface and referenced his Christian faith — said the university “will not host a drag show on campus.”

“I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it,” Wendler wrote.

West Texas A&M University students in a March 23, 2023, lawsuit alleged Wendler, the school and its governing body had violated students’ First Amendment rights by preventing the event and future drag shows from taking place on campus, calling the move “textbook viewpoint discrimination.”

A Texas district court judge in September denied the students’ motion for a preliminary injunction and dismissed a damages claim against Wendler. The Foundation for Individual Rights and Expression (FIRE), the nonprofit group representing the students in court, appealed that decision to the Fifth Circuit in November.

The Fifth Circuit Court of Appeals last month declined to expedite the appeal, which students in Monday’s motion said was evidence that “the judicial safety net” had broken down.

“As a consequence, the university is poised to repeat and perpetuate its act of censorship, preventing the planned annual performance this coming March 22, 2024,” the students said in the motion addressed to Justice Samuel Alito, the circuit justice for the Fifth Circuit. 

“In this unique circumstance, only this Court can halt an ongoing violation of two of the most fundamental First Amendment protections: the bars against prior restraint and viewpoint-based censorship,” they said.

A West Texas A&M University spokesperson declined to comment on the students’ arguments or appeal to the Supreme Court, citing pending litigation.

In an emailed statement, FIRE attorney Adam Steinbaugh said “immediate intervention” — by either the Fifth Circuit or the Supreme Court — is needed to protect free expression on the university’s campus. Spectrum WT’s next annual drag show is scheduled for March 22.

Monday’s motion is the latest escalation in a series of high-profile legal battles over drag shows nationwide.

Federal court orders in Tennessee and Montana are currently blocking the states from enforcing laws explicitly restricting drag events, and a similar law restricting “adult” or “sexually oriented” performances in Florida is temporarily blocked, though the state has appealed that decision.

A Texas judge in September struck down the state’s law limiting drag performances, ruling it “an unconstitutional restriction on speech.”

“Indeed, First Amendment protection has been extended to all types of activities, even some that seem untasteful to society,” District Judge David Hittner wrote in his September opinion, citing a 2020 case concerning exotic dancers.

The Supreme Court so far has been largely hesitant to wade into cases implicating LGBTQ rights, though two of the court’s leading conservatives — Alito and Justice Clarence Thomas — appear eager to change that.

The Supreme Court in November declined to revive Florida’s law restricting drag shows after it was blocked by a lower court, with Alito, Thomas and Justice Neil Gorsuch dissenting.

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