The 5th Circuit Court of Appeals heard oral arguments on Monday from a lawyer representing a group of West Texas A&M University students who were denied their request to host a banned on-campus drag show.
The West Texas A&M student group, Spectrum WT, originally scheduled a drag show to take place on March 31, 2023 to raise money for a nonprofit focusing on transgender suicide prevention. In response, all drag shows were banned by the university's President Walter Wendler, who issued an online statement on March 21, 2023 that read, “Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent.”
The Foundation for Individual Rights and Expression (FIRE) then filed a lawsuit against Wendler, requesting a preliminary injunction. U.S. District Judge Matthew Kacsmaryk denied the request.
FIRE filed an emergency application on March 4, 2024, asking the Supreme Court of the United States (SCOTUS) to overrule the university's ban. SCOTUS denied the application on March 15.
On Monday, Spectrum WT was represented in court by JT Morris with FIRE, heard by Judges James L. Dennis, Leslie H. Southwick, and James C. Ho.
In his opening statement, Morris referenced the ongoing legal battle between the students seeking to host the drag show and Wendler.
“For over a year, a prior restraint has stifled protected student expression,” Morris said, adding that it was due to Wendler believing “that protected expression, drag performances, sends a message that offends women.”
“If free expression at our public universities can teeter on the attitudes and assumptions of campus officials,” Morris said, “then no idea, no message, no viewpoint is safe, regardless of where it falls on the political or cultural spectrum. Thankfully, the First Amendment, not the personal views of campus bureaucrats, dictates free expression at our public universities.”
Morris then stated that the case could be solved on the basis of precedent, beginning with Southeastern Promotions, Ltd V. Conrad.
After Morris affirmed his position that he “doesn’t trust university administrators to decide whose speech rights should be respected and whose should not,” he was asked by one of the judges how he reconciles that with the case Christian Legal Society (CLS) v. Martinez, “which seems to specifically say that we have to defer to university administrators, particularly when it comes to issues of inclusion.”
In that case, the CLS chapter at the University of California, Hastings College of Law filed a lawsuit on the basis of First Amendment violation by the university. CLS had a requirement for all members to recite a Christian creed, which the university saw as a violation of the state law that required such groups to allow student participation without consideration of belief, or other discriminatory factors. After the district court dismissed the case, the 9th Circuit Court of Appeals affirmed the university’s decision to not recognize CLS as an official group.
Morris then argued that CLS was a narrow decision, “sort of the mirror image of this case.” He stated that CLS had, according to SCOTUS, “a content-neutral, generally applicable policy that the plaintiff wanted an exclusion from. What we have here is the exact opposite.”
The judge offered, “University policies in both cases seem to have at least two commonalities: one, the stated interest by the university is making everybody feel included. And two, a lot of skepticism from certain quarters about whether that was a sincere interest in inclusion as opposed to actually an exclusionary interest. And yet, CLS said we defer.”
Morris then articulated that in the CLS case, SCOTUS decided to let the administrators impose a “content-neutral restriction on access to public forums,” which he argued is different from the Spectrum WT case because the administrators were imposing “viewpoint-based and content-based restrictions,” by banning drag shows.
“What's the view that’s being excluded here?” the judge asked. “To my understanding, it’s a particular type of expression that is being excluded, not a particular viewpoint … which is why it seems to me CLS is fairly similar.”
Morris disagreed, “President Wendler is saying: by my subjective determination, the message expressed by student drag shows is offensive.”
The judge then asked Morris if that was not the same thing the dean of Hastings was saying in CLS. “That was the group excluding people…here it is the university that is excluding a student group from an open campus based on viewpoint.”
When asked if President Wendler had prohibited all drag shows regardless of who hosted them, Morris affirmed that Wendler had indeed banned all drag shows on campus.
“It is not viewpoint discriminatory,” the judge said, after concluding that Wendler was indifferent to the message of the drag show.
“He cares that it is offensive … when the government makes a subjective determination that speech is offensive and restricts it on that basis, that is viewpoint discrimination,” Morris countered.
The judge asked, “Do you agree that drag shows can be used to celebrate or denigrate particular populations, or that it just depends on what the message of that particular direction was?”
Morris responded that it could be interpreted differently per each audience.
He continued, “President Wendler has denied students the right, under the First Amendment and campus policy, to go and engage in protected expression at an open campus forum.”
Concluding his time, Morris stated, “The students followed the rules, the university staff followed the rules, they found no policy that this direction would violate. It was only when President Wendler commandeered this process to impose his personal views over the First Amendment, that this became a problem.”
It was then stated by the opposing party’s attorney that Morris had not met his burden to obtain a preliminary injunction, because “there was, and is, no imminent injury.”
The lawyer then argued in favor of Wendler, saying, “Legacy Hall is not within the scope of what the university has identified as a public forum … President Wendler’s policy satisfies the limited public forum standard.”
He pointed out that “if a Christian group wanted to have a drag show for a Jesus event, that would be banned. It doesn’t matter what group you are, or what the purposes of the drag show are, you are not allowed to have it on campus.”
“When President Wendler implemented this drag show ban, he was relying on decades of experience, and CLS does talk about deference to college officials,” he said. “There are no ramifications for anybody in the student group for putting on a drag show anywhere off campus.”
Referring back to the CLS V. Martinez case and summarizing the attorney’s point, the judge said, “If anything, CLS was treated worse because they weren’t allowed to be a student group at all … Whereas you’re saying this group, they just have to take the drag show off campus, they can do everything else consistent with the policies on campus?”
“That’s correct, Your Honor,” the speaker concluded.
“President Wendler requests that the court affirm that the District Court has denied the preliminary injunction,” he stated, “but if the court were to disagree with our views on whether this is covered by the First Amendment … Wendler thinks that the appropriate remedy would be then to just remand back for factual development.”
“Maybe clarify the law,” he concluded.
The next attorney began by stating that “the necessity of a preliminary injunction against each official must be analyzed separately.” She continued, “The plaintiffs did not and have not clearly carried their burden of persuasion on all preliminary injunction requirements.”
She then spoke of the West Texas A&M Vice President of Student Affairs Dr. Chris Thomas and Chancellor John Sharp of the Texas A&M University system. “Neither Chancellor Sharp nor Dr. Thomas have remotely engaged in viewpoint discrimination, exclusion from a public forum, or a prior restraint of Plaintiff's speech,” she said.
The opposing party retorted, “This is about [Sharp’s] authority to put an end to a year-long prior restraint … He should have put an end to this prior restraint, which shouldn't have lasted a day, it's now lasted a year.”
The lawyer then referred to an earlier statement, pointing out, “One does not have to have his First Amendment rights abridged just because he can speak somewhere else. No matter who you are at West Texas A&M, you can't put on a drag show. You can't engage in protected expression. That is a prior restraint.”
The judge countered, “If a university had a no nude dancing policy or no public nudity policy and it cut across all viewpoints, would that be okay?” The attorney said it would be.
Referring back to the CLS case, he stated “I think this is an opportunity for this court to clarify that CLS is a narrow decision. It did not target religious groups. They had a tangible policy there. This case is about a university president grabbing unfettered discretion and saying my views, not university policies.”
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