U.S. Supreme Court declines to intervene in lawsuit over West Texas A&M drag shows

Students rallied against the West Texas A&M University presidents decision to cancel a drag performance on March 23, 2023. (David Bowser For The Texas Tribune, David Bowser For The Texas Tribune)

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The U.S. Supreme Court on Friday denied some West Texas A&M University students’ attempt to prevent President Walter Wendler from canceling another on-campus drag show scheduled next week.

Last year, Wendler banned student-led drag shows on the university’s campus, saying the performances degrade women. Students sued the president in response, arguing Wendler violated their First Amendment rights. A Texas federal district court denied the students’ request for relief from Wendler’s ban, arguing not all drag shows are “expressive conduct.”

Earlier this month, West Texas A&M students filed an emergency application with the Supreme Court, seeking an injunction against Wendler to ensure he does not cancel a March 22 drag show students planned. The lawsuit is before the 5th Circuit Court of Appeals, but that court will not hear oral arguments until April — leaving the door open to another cancellation without a court’s intervention.

In addition to the initial injunction against Wendler, the Foundation for Individual Rights and Expression filed another petition in federal courts arguing that the slow-moving legal process could imperil students’ First Amendment rights by not preventing another canceled drag show. The 5th Circuit declined to rule on the subsequent injunction until it hears arguments on the original question presented in the case.

After Wendler canceled the show last March, he sent an email to the campus explaining his decision. He acknowledged that “the law of the land appears to require” him to allow the performances to go forward, but that did not dissuade him.

“No one should claim a right to contribute to women’s suffering via a slapstick sideshow that erodes the worth of women,” Wendler wrote.

Following the debacle, a majority of West Texas A&M faculty voted to condemn Wendler for his handling of the drag show and for exhibiting a pattern of “divisive, misogynistic, homophobic and non-inclusive rhetoric that stands in stark contrast with the Core Values of the university.”

In an email obtained by The Texas Tribune, Wendler said his decision to cancel the show resulted in an upswell of support from those outside the university in the Panhandle. He has yet to declare whether he will allow next week’s drag show to move forward.

“The ball’s in his court now,” Adam Steinbaugh, an attorney for FIRE representing the students, said in an interview.

There is no order from the court preventing Wendler from canceling the show, Steinbaugh said, but he would still be violating students’ First Amendment rights if he repeated his actions from last year.

“It takes courage to stand up for your rights and when you stand up for your own rights, you wind up advancing the rights of everyone else,” Steinbaugh said of the students suing the university.

The Supreme Court did not provide its reasoning for denying students’ request. In response to questions from the Tribune, the university said it does not comment on pending litigation.

In September, a federal district judge in Texas ruled that a 2023 state law that restricted some public drag shows unconstitutionally violated performers’ First Amendment rights. Texas appealed the decision to the 5th Circuit.

The two district court decisions, at odds over the question of whether drag is protected under the First Amendment, are both before the appeals court.

Disclosure: West Texas A&M University has been a financial supporter 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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