Federal Judge Sides With Texas University President Who Called Off On-Campus Drag Show

The university president said he won't allow something as demeaning as 'blackface' performances on his campus.
Federal Judge Sides With Texas University President Who Called Off On-Campus Drag Show
A judge's gavel in a file photo. (Joe Raedle/Getty Images)
Bill Pan

A federal judge has ruled that West Texas A&M University (WT) did not violate students' First Amendment rights when the institution's president called off a drag show he deemed deeply offensive to women in a degree akin to blackface performances.

The canceled drag show was planned for March 31 on WT campus as a fundraiser for The Trevor Project, a nonprofit that describes itself as working to "end suicide among LGBTQ young people." The event was open to children so long as they were with a parent or guardian.

The university's president, Walter Wendler, canceled the event, explaining in a campus-wide email that while he was supportive of The Trevor Project's mission, he described drag shows as "derisive, divisive and demoralizing misogyny, no matter the stated intent."

"Every human being is created in the image of God," Mr. Wendler wrote in the lengthy letter explaining the reasoning behind his decision. "Being created in God's image is the basis of Natural Law. James Madison and Thomas Jefferson, prisoners of the culture of their time as are we, declared the Creator's origin as the foundational fiber in the fabric of our nation as they breathed life into it."

"Does a drag show preserve a single thread of human dignity? I think not," the letter continued. "As a performance exaggerating aspects of womanhood (sexuality, femininity, gender), drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.

"Any event which diminishes an individual or group through such representation is wrong," he declared.

Spectrum WT, the LGBTQ student club organizing the event, ended up moving the drag show off campus. The club shortly after sued the public university on the First Amendment ground, accusing WT administrators of engaging in "textbook viewpoint discrimination."

"As a public official, [Mr. Wendler] cannot bar Spectrum WT and its members from exercising their First Amendment rights merely because he believes his personal opinions override the Constitution. They don't," read the complaint filed on behalf of the student group by the Foundation for Individual Rights and Expression (FIRE).
In a decision (pdf) issued on Sept. 21, U.S. District Judge Matthew Kacsmaryk rejected the students' request to prohibit the university shutting down on-campus drag shows in the future as the legal battle continues.

According to Mr. Kacsmaryk, the event's sexual nature and the fact that children were in the audience makes it "more regulable under various First Amendment doctrines."

"The First Amendment does not prevent school officials from restricting 'vulgar and lewd' conduct that would 'undermine the school's basic educational mission'—particularly in settings where children are physically present," the judge wrote.

When it came to Mr. Wendler's conduct, the judge said the WT president was acting in an "objectively reasonable" way, considering that the performer's past performances involved "stimulated stripping, simulated masturbation, bouncing feminine breasts, and frequent presentation of his barely covered crotch."

"There is a compelling interest in protecting the physical and psychological well-being of minors," Mr. Kacsmaryk, a President Donald Trump-appointee, wrote. "Even if clearly established rights were violated, President Wendler's decision was still objectively reasonable."

The judge further questioned whether a drag performance automatically constitutes an explicit political statement simply because it features cross-dressing. For example, he said, people seeing male football players posing in cheerleader skirts would not necessarily consider it an "unmistakable" advocacy of LGBTQ rights, if it isn't accompanied by relevant political dialogue or speech.

"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," the ruling stated.

FIRE, a Philadelphia-based nonprofit that recently broadened its work beyond college campuses, criticized the ruling and vowed to appeal.

"FIRE strongly disagrees with the court's approach to First Amendment analysis and its conclusions," the group's attorney stated. "We will appeal, and our fight for the expressive rights of these brave college students will continue."

In his criticism against drag performances, Mr. Wendler also compared them to criticism received by non-black's doing caricatures of black persons.

“As a university president, I would not support ‘blackface’ performances on our campus, even if told the performance is a form of free speech or intended as humor.”

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