Supreme Court Stays Out of Dispute Over Drag Show at Texas University

The Supreme Court on Friday rejected a request from an L.G.B.T.Q. student group at a public university in Texas to let it put on a drag show on campus over the objections of the university’s president, who had refused to allow it.

In an emergency application, the students said the president’s action violated the First Amendment.

As is the court’s custom when ruling on emergency matters, the justices’ brief order gave no reasons. There were no noted dissents.

Drag shows are increasingly a target of the right, with some Republican-led states, including Florida and Tennessee, seeking to restrict the performances.

The student group, Spectrum WT, first sought to sponsor the drag show, a charity event to raise money for suicide prevention, in March 2023. Walter Wendler, the president of West Texas A&M University, canceled it, citing the Bible and other religious texts.

Drag shows, he said, “are derisive, divisive and demoralizing misogyny.”

He added: “A harmless drag show? Not possible.” Mr. Wendler went on to say that he would not condone such shows “even when the law of the land appears to require it.”

The student group and two of its members sued, saying the president’s action was a prior restraint and government discrimination based on viewpoint, both violations of the First Amendment. The group held the 2023 event off campus, started planning the 2024 show and asked for a court order letting that show take place on campus.

In September, Judge Matthew J. Kacsmaryk, of the Federal District Court in Amarillo, denied the students’ request for a preliminary injunction. He said that “it is not clearly established that all drag shows are inherently expressive,” an assertion in tension with First Amendment precedents protecting stage performances.

More generally, the Supreme Court has said that it is “a bedrock First Amendment principle” that “speech may not be banned on the ground that it expresses ideas that offend.”

Judge Kacsmaryk suggested that the Supreme Court’s First Amendment jurisprudence had strayed from what he said was the correct mode of constitutional interpretation, one grounded in “text, history and tradition” and at odds with the more categorical protections of free speech that he said had emerged in the late 20th century.

Judge Kacsmaryk, who was appointed by President Donald J. Trump, has issued other notable rulings. In 2023, he gained attention for overriding the Food and Drug Administration’s approval of the abortion pill mifepristone, a ruling the Supreme Court has put on hold and will hear arguments on this month.

In 2021, the judge ruled that the Biden administration could not rescind a Trump-era immigration program that forced some asylum seekers arriving at the southwestern border to await approval in Mexico. The Supreme Court disagreed.

In the drag show case, the students asked the U.S. Court of Appeals for the Fifth Circuit to put their appeal of Judge Kacsmaryk’s decision on a fast track, but the court refused, scheduling arguments for the week of April 29, after the scheduled performance.

The students then filed an emergency application asking the Supreme Court to step in. The court had an earlier encounter with drag shows in November, when it refused to revive a Florida law that banned children from what the law called “adult live performances.”

Mr. Wendler, represented by Ken Paxton, Texas’ attorney general, urged the justices to deny the application, saying the students had been too slow in seeking judicial relief.

Mr. Wendler added that the dispute was unworthy of the court’s attention. “This case involves whether a fund-raiser for a campus organization at a West Texas university can be held on campus or must be held down the street,” his brief said.

The First Amendment, he went on, had little to say about the matter, as drag shows are not “pure speech” but rather conduct that may be regulated. “President Wendler reasonably prohibited the expenditure of university resources on offensive and lewd conduct,” his brief said.

The students in the Texas case are represented by the Foundation for Individual Rights and Expression, which takes a particular interest in protecting free expression on campus. In the student group’s emergency application, the foundation’s lawyers wrote that banning the drag show was not an isolated incident.

“This would be bad enough if the problem were confined to having the president of one small public university in the Texas Panhandle defy what he knows to be the First Amendment’s command,” the application said. “But it isn’t. Public university and college officials nationwide from across the political spectrum are appointing themselves censors in chief, separating what they consider ‘good’ from ‘bad’ expression on their campuses.”