WTAMU student group's injunction denied: Wendler granted immunity from lawsuit

A federal judge ruled that a ban on drag shows at a West Texas A&M University can remain in effect while a lawsuit challenging it proceeds, writing that drag performances are not categorically protected under the First Amendment.

U.S. District Judge for the Northern District of Texas Matthew Kacsmaryk, an appointee of former President Donald Trump, denied a motion for a preliminary injunction against West Texas A&M University from banning future drag shows on campus. Kacsmaryk also granted the university president, Walter Wendler, qualified immunity from the lawsuit, filed by the Foundation for Individual Rights and Expression (FIRE).

"Because men dressed in attire stereotypically associated with women is not 'overtly political' in a category of performative conduct that runs the gamut of transvestism… it is not clearly established that all drag shows are inherently expressive," Kacsmaryk wrote.

And even if the performance in question did implicate the First Amendment, Kacsmaryk continued, the university was not forbidden from regulating obscene conduct.

"The First Amendment does not prevent school officials from restricting 'vulgar and lewd' conduct that would 'undermine the school's basic education mission'—particularly in settings where children are physically present," Kacsmaryk wrote, citing conservative sources such as the Manhattan Institute's Chris Rufo and Gays Against Groomers.

The legal battle began earlier this year, when a student group at West Texas A&M University, Spectrum WT, tried to schedule a charity drag show on campus in late March to raise money for LGBTQ+ suicide prevention.

However, Wendler canceled the event. Wendler claimed that drag shows degrade women, and compared them to blackface minstrel shows. 

"A harmless drag show? Not possible," Wender wrote. "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."

FIRE filed a lawsuit in March on behalf of Spectrum WT against Wendler and several other Texas A&M University officials, arguing that drag performances are inherently expressive acts protected by the First Amendment. The suit called Wendler's edict banning drag shows "textbook viewpoint discrimination" that chills student speech.

Kacsmaryk's ruling only applies to early-stage motions in the lawsuit, which will continue. FIRE said in a statement today that it plans to appeal.

"FIRE strongly disagrees with the court's approach to First Amendment analysis and its conclusions," FIRE senior attorney JT Morris said in a press release. "We will appeal, and our fight for the expressive rights of these brave college students will continue."

The Texas Legislature passed Senate Bill (SB) 12 during the 88th Legislative Session, which bans drag shows that have children under 18 years old in attendance.

The bill is temporarily blocked from going into effect after the American Civil Liberties Union (ACLU) of Texas filed a lawsuit against it, stating that it is “unconstitutional law that violates the First and Fourteenth Amendments and threatens the livelihood and free expression of many Texans, including drag performers.”

A federal district judge in Houston agreed, and stated that “there is a substantial likelihood that S.B. 12 as drafted violates the First Amendment of the United States Constitution under one or more of the legal theories… the Court considers the impending infringement on the Plaintiffs constitutional rights sufficient irreparable harm to warrant enjoining S.B. 12 while a final judgment is drafted.”

While the judge in Houston issued their ruling to “preserve the status quo,” Kacsmaryk’s ruling could set an interesting legal precedent for when an eventual challenge is levied against SB 12’s temporary restraining order.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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