West Texas A&M defends drag show ban at Fifth Circuit

NEW ORLEANS (CN) — A student-led LGBTQ+ group argued to a Fifth Circuit panel Monday that the president of West Texas A&M violated its constitutional right to free speech by barring its annual drag show fundraiser on campus, but the school insists the ban wasn't discriminatory.

Spectrum WT, the West Texas A&M’s student-led LGBTQ+ organization, told the three-judge panel that in banning drag shows the president of the university was exhibiting “viewpoint discrimination” and thus violating the organization’s First Amendment rights.

“What viewpoint is being excluded here?” asked U.S. Circuit Judge James C. Ho, an appointee of Donald Trump.

J.T. Morris, of Washington nonprofit Foundation for Individual Rights and Expression, argued on behalf of the student group that since West Texas A&M University President Walter Wendler purportedly interprets drag shows as offensive to women, he is viewing drag shows through his own discriminatory lens.

In legal documents, Wendler, the public university’s Christian president characterized drag shows as “derisive, divisive and demoralizing misogyny.”

Joseph Mazzara, who argued on behalf of Wendler during Monday’s hearing, said drag shows don’t have an inherent expression or speech, and therefore Wendler’s banning them isn’t unconstitutional.

In February, Wendler blocked Spectrum WT’s planned drag show less than three weeks before it was set to go on in an email sent to all of the university’s 9,500 students with the subject line, “A Harmless Drag Show? No Such Thing.”

In the letter, Wendler called drag offensive to women and compared it with blackface performances.

“The WT community should live by the Golden Rule,” Wendler said. “As a Christian, I personally learned this in the book of Matthew. 'So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.'”

Mazzara also argued on Monday drag shows across the board have been banned from the university, with no exception, so Wendler’s banning this one didn’t have anything to do with which organization wanted to host it.

“If a Christian group wanted to have a drag show, for instance something like ‘Drag for Jesus,’ that would also be banned,” Mazzara told the judges during Monday’s oral argument. “I just really want to emphasize, that under the policy, it doesn’t matter who you are, you can’t do a drag show."

“And this is not like a criminal ban. There are no ramifications for anyone who wants to, for instance, have a drag show off campus," Mazzara added.  

“This group just has to take the drag show off campus. They can do anything else," Ho said.

“Right,” said Mazzara. “They have free reign. Except for with drag shows. They’re able to do anything they want to do. They just can’t do this one particular thing in this one particular place. And there are other venues available to them.”

After Spectrum WT’s planned drag show, which was set for March 31, 2023 and was only called off less than a month before it was to go on, was canceled, the group chose another venue off campus but had to pay a fee of roughly $1,000 for the slot.   

In its lawsuit filed with the U.S. District Court Northern District of Texas, Spectrum WT said that as a recognized West Texas A&M University student organization it should be able to use campus facilities like all other student groups.

“Whether students gather on campus to study the Bible, host a political talk, or put on a drag show for charity, the First Amendment prohibits public university officials from suppressing the students’ expression simply because the administrator (or anyone else) finds the message offensive,” the group said in its lawsuit.

Spectrum WT later raised the issue to the U.S. Supreme Court, hoping for a finding that its freedom of speech had been violated by Wendler’s ban, but the court denied the request, saying Wendler’s decision can stand.

The panel — which also included U.S. Circuit Judge Leslie Southwick, an appointee of George W. Bush, and U.S. Circuit Judge James Dennis, a Bill Clinton appointee — appeared unconvinced that anyone’s rights had been violated, though the judges did not say for sure how or when they will decide on the matter.

Drag shows have become a front line in the nation’s culture wars, as lawmakers in at least 14 states have introduced bills to restrict them.

In Texas, four proposed bills would restrain drag shows, including by redefining any place that hosts a drag show as a “sexually oriented business.”

Follow @SabrinaCanfiel2

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