Students are suing officials at West Texas A&M University for canceling a campus drag show, alleging the decision violated students’ First Amendment right to free expression.
Generally, colleges (unlike K-12 schools) can’t ban offensive performances. For example, a federal appeals court ruled that Virginia’s George Mason University couldn’t punish a fraternity for an offensive blackface skit, in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993).
On March 24, leaders of the student group Spectrum WT sued university officials. They are represented by the Philadelphia-based Foundation for Individual Rights and Expression.
Their lawsuit sues University President Walter Wendler not just in his official capacity (which is what First Amendment lawsuits do when they seek an injunction against a college official), but also in his personal capacity (which is what lawsuits do when they seek monetary damages from a government official). Moreover, it seeks punitive damages against Wendler personally, which means if he loses the lawsuit, he would not only have to pay out-of-pocket, but could be ordered to pay extra as a way of punishing him for violating the First Amendment.
To obtain punitive damages (or compensatory damages), the students would have to defeat the defense of qualified immunity, which protects government officials — including college officials — from having to pay monetary damages when the law was not clearly established prior to the lawsuit that what they did was a violation of the Constitution.
But Wendler’s clumsy remarks defending his actions seem to have more or less conceded away that potential defense, because he admitted that what he was doing was at odds with what court rulings seemed to require.
“Remarkably, Wendler appeared to know he was violating the law by canceling the show. Announcing the cancellation in a campus-wide email, Wendler acknowledged the ‘law of the land appears to require’ him, as the leader of a public university, to permit student expression he dislikes,” FIRE observed in his press release.
Any competent lawyer would have advised Wendler not to make such an acknowledgment.
The complaint in the lawsuit claims Wendler acted with a “retaliatory and oppressive intent toward Plaintiffs in reckless and callous disregard for their clearly-established constitutional rights.”
FIRE attorney Adam Steinbaugh said that “Officials who violate the First Amendment should not be shielded from consequences, especially when they’ve had ample warning that they are violating the law.”
On March 24, FIRE wrote to President Wendler, telling “him that drag performances are inherently expressive acts protected by the First Amendment” and gave him until March 25 “to confirm that he would restore the event. But Wendler gave no indication that he would stop violating the Constitution,” according to FIRE’s press release.
The complaint drafted by FIRE says university officials violated students’ First Amendment rights by engaging in viewpoint discrimination and unreasonable restrictions on speech in a public forum. It asks for an injunction allowing the drag show to take place as planned.
Wendler had blocked the drag show, planned for next Friday, claiming in a memo to the campus community drag shows are “demeaning” to women and “demoralizing misogyny.”
But given that a sexist, blackface “ugly woman” skit was ruled to be protected at George Mason University in 1993, it’s hard to see how the allegedly sexist nature of drag shows would strip them of First Amendment protection.
The drag show was planned as a fundraiser for The Trevor Project, a lefty LGBTQ nonprofit.
Wendler meant well. In his four-page letter sent last Tuesday explaining why he canceled the event, he said “every human being is created in the image of God.” But good intentions don’t excuse a First Amendment violation.
In his letter, Wendler wrote:
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. 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.
Wendler’s action appears to violate not just the First Amendment, but also state law as well. The complaint in the lawsuit against Wendler says the Texas legislature “has codified the First Amendment’s prohibition on viewpoint discrimination, barring public universities from ‘tak[ing] action against a student organization or deny[ing] the organization any benefit generally available to other student organizations at the institution on the basis of a political, religious, philosophical, ideological, or academic viewpoint expressed by the organization or of any expressive activities of the organization.’”
But it is not clear that the students can sue over that alleged violation of state law in federal court, given the limits on suing government officials in federal court over state law violations imposed by the Eleventh Amendment.
Wendler’s memo angered some students, who protested it last week. A petition in support of the drag show collected over 10,000 signatures.
