Texas judge rules against immediate relief for students facing drag show ban

Citing a procedural rule but giving no further explanation, Judge Matthew Kacsmaryk holds off on granting relief to students whose university president banned a charity drag show.

Mar 27, 2023

U.S District Judge Matthew Kacsmaryk refused a student group’s request for an immediate order preventing their university’s president from unconstitutionally banning their scheduled on-campus charity drag show due to his personal opposition to the show.

Kacsmaryk, a Trump appointee with a record of anti-LGBTQ beliefs and rulings, wrote that the requirements for an ex parte temporary restraining order were “not satisfied” by the lawyers for the students at West Texas A&M University. An ex parte order is an exceptional request, it’s true: It’s a request for an order from a court without hearing both sides.

But, this is an exceptional case: The WTAMU president, Walter Wendler, wrote in announcing the cancellation of the charity drag show scheduled for March 31 that he was doing so even though “the law of the land appears to require” otherwise. (Law Dork covered this aspect of the case on March 24, when the lawsuit was filed.)

The clear viewpoint discrimination and content discrimination involved in this case, from a public official at a public college, where existing policies at the school clearly would allow this event, should make this an open-and-shut First Amendment case.

So, what happened?

In the Federal Rules of Civil Procedure, here are the standards for granting such exceptional ex parte TRO relief:

(b) Temporary Restraining Order. (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Specifically, Kacsmaryk wrote that the (b)(1)(B) requirements were not met. Notably, he wrote nothing about the (b)(1)(A) requirements.

It’s really hard to see how this could be true.

First, lawyers for the student group, Spectrum WT, are from the Foundation for Individual Rights and Expression (FIRE), which sent a letter to Wendler about their concerns with his actions on March 21, as noted in the complaint in the case.

87. On March 21, the Foundation for Individual Rights and Expression (FIRE), which now represents Plaintiffs, sent a letter to President Wendler, explaining that his conduct violated the First Amendment and calling on West Texas A&M to confirm that it would reinstate the event. 88. The same day, President Wendler acknowledged the letter, copying the general counsel for the Texas A&M University System. 89. But neither President Wendler, West Texas A&M, nor the Texas A&M University System responded substantively to FIRE’s letter.

In addition to the university acknowledging receipt, this was a public, known request. (Among others, I tweeted about it.)

The university did not act in response, however, leading to the lawsuit — and request for the ex parte TRO, among other relief — filed on March 24.

Specifically, the motion noted that the students were asking for the ex parte TRO “given the ongoing irreparable injury to their First Amendment rights” and included the following 65(b)(1)(B) certification

Under Fed. R. Civ. P. 65(b)(1)(B) and Local Rule 7.1, I certify that on the morning of March 24, 2022, I sent a copy of Plaintiffs’ verified complaint by email to Ray Bonilla (rbonilla@tamus.edu), general counsel for the Texas A&M University System. I informed Mr. Bonilla of Plaintiffs’ intent to file a temporary restraining order and preliminary injunction motion later in the day on March 24, and asked if Defendants had a position on Plaintiffs’ motion. Mr. Bonilla has not provided a position. Immediately after filing Plaintiffs’ TRO and preliminary injunction motion, I sent a copy of the motion, supporting brief, and proposed order to Mr. Bonilla by email. Plaintiffs are also making efforts to personally serve each Defendant with process and a copy of Plaintiffs’ motion, brief, and proposed order. Because of the ongoing irreparable damage to Plaintiffs’ First Amendment rights, notice should not be required.

The brief accompanying the request further laid out the need for quick action from the court out plainly.

II. Plaintiffs Will Suffer Irreparable Harm Absent Immediate Relief. Above all, the ban on Plaintiffs’ March 31 show—as well as any similar shows—are causing them irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373. See also Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013) (“We have repeatedly held . . . that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction.”) (cleaned up).

The brief went further than that, explaining why relief couldn’t wait.

Plaintiffs’ ongoing injuries go further. While the effects of President Wendler’s unilateral cancelation of Plaintiffs’ event will reach their peak on March 31, his announcement is causing current harm to Plaintiffs’ First Amendment rights, which only this Court’s swift intervention will cure

And, this.

Plaintiffs are ready, prepared, and willing to go forward with their event on March 31, 2023. (Verif. Compl. ¶ 95.) It is only Defendants’ censorship—and President Wendler’s refusal to obey the Constitution instead of his personal beliefs— standing in the way. (Id.) Only immediate action by this Court can remedy Defendants’ First Amendment violations in a way which will prevent irreparable harm.

Despite all of that, Kacsmaryk’s order today means that the earliest these students will know that they can go ahead with their charity drag show is the day before the show is scheduled to take place.

This is a clear-cut case involving an ongoing constitutional violation with a fast-moving timeline where the party in violation was notified of the constitutional concerns before the lawsuit was even filed, and yet, Kacsmaryk, without providing more than reference to that rule, has effectively snuffed out the students’ exercise of their First Amendment rights for another week.

This was updated at 4:45 p.m. on March 28 to include the certification language and screenshot.

9 Comments

mcvresearch

Writes mcvresearch’s Substack

Mar 28

It’s not fair all these cases go to this transphobic ass of a judge

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Jean in Florida

It’s like there is a contest between Texas and Florida to see which state can trample the most on their residents’ Constitutional Rights.

We need to get big money out of politics, & term limit all judges, starting with the Federal Supreme Court & working our way down the entire court system.

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