The university drag ban at SCOTUS shows our broken judicial system

Students at West Texas A&M University have gone a year with a drag ban that the school's president acknowledged appears to violate "the law of the land."

West Texas A&M University president’s 2023 email banning drag shows — including the charity drag show referenced in the email, which had been advertised on campus (inset) prior to the president’s email.

Students at a public university have been banned from holding drag shows on campus for nearly a year because the school’s president believes that drag shows run against the “basis of Natural Law” and because a handful of federal judges have let the clearly unconstitutional ban remain in effect.

All of this has happened despite the fact that even the school’s president admitted that “the law of the land appears to require” him to allow the charity drag show to take place that started the dispute.

But, we live in a world where Matt Kacsmaryk is not a religious extremist lawyer filing cases against people he hates but is instead a federal district judge with lifetime tenure ruling on those cases. He, with support from the U.S. Court of Appeals for the Fifth Circuit, has kept this charade going for nearly a year.

Now, though, the students in Spectrum WT at West Texas A&M University are, a year later, trying to schedule another year’s charity drag show.

Having been unable to get lower courts to stop this blatant First Amendment violation from continuing, they filed a shadow docket request at the U.S. Supreme Court this week, asking, in part, “[w]hether the courts below erred in not enjoining a viewpoint-based prior restraint on an entire category of protected stage performances.”

Their request for an injunction pending appeal was filed with the court Monday — which was noted at Law Dork at the time — and docketed on Wednesday.

On Wednesday, Justice Sam Alito — the circuit justice for the Fifth Circuit — called for a response by 5 p.m. March 13.

It’s a mess of a situation — but it is also a perfect encapsulation of how our judicial system has failed us that it’s gotten to this point. Were it not for the judges involved, and the U.S. Supreme Court majority that is encouraging them, there’s no way it would have gotten here.

[Update, 1:25 p.m. March 15: The Supreme Court denied the students’ request for an injunction against the campus drag ban pending appeal. There were no noted dissents.

This is not a state law, and it is not a final ruling on the merits — it is a request for an injunction pending appeal, which, in theory, is a big ask — but it is still an extremely disappointing order from the court, particularly given the lack of any noted dissents.]

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What is going on?

A year ago this week, the West Texas A&M University students in Spectrum WT, an approved student group, were preparing for the group’s charity drag show benefiting the Trevor Project, as the lawsuit — noted by Law Dork last year — detailed:

Then, on March 20, 2023, after West Texas A&M University President Walter Wendler found out about the drag show, he had one of his minions cancel the event:

Wendler himself then sent an email that should have begun and ended this dispute:

As the students — represented by the Foundation for Individual Rights and Expression (FIRE) — noted in the lawsuit, Wendler acknowledged that the decision was based on his personal opposition to drag shows:

Finally, and — remarkably — he closed the email by admitting that his acts appeared to be unconstitutional:

I know. You thought there was a possibility that I was being over-the-top in my introduction. I was not.

Those facts were no match for U.S. District Judge Matt Kacsmaryk, who — days before his mifepristone-blocking decision that put him on the national map — denied the students a temporary restraining order on March 27, 2023, forcing them to hold the event off campus.

Six months later, after more full briefing, Kacsmaryk, a Trump appointee, doubled down, denying the students’ request for a preliminary injunction in the case in September 2023 and becoming the only federal judge last year to rule in favor of a drag ban.

It was, as I wrote at the time, “an extremely troubling decision on several grounds” — including that Kacsmaryk cited anti-LGBTQ figureheads whose information was not, that I could find, anywhere in the briefing in justifying his decision and how his ruling broke from other judges across the nation.

The next month, the Fifth Circuit’s treatment of the case began. After the student group sought an expedited appeal, a Fifth Circuit panel — consisting of Judges Carl Stewart, a Clinton appointee; Edith Brown Clement, a George W. Bush appointee; and Kurt Engelhardt, a Trump appointee — denied the request on Oct. 11, 2023.

Months later, as briefing in the appeal continued, the student group on Feb. 9 requested an injunction pending appeal so Spectrum WT can hold this year’s charity drag show on campus.

To that, the Fifth Circuit took another of its favorite actions, refusing to rule on the student group’s request. Instead, in a Fifth Circuit practice that avoids an actual ruling on such requests, a motions panel — consisting of Judges Edith Jones and Jerry Smith, Reagan appointees, and Judge James Dennis, a Clinton appointee — ruled on Feb. 22 that the motion is “carried with the case” — meaning the merits panel could, but has no obligation to, address the request.

Notably, a different motions panel of the court similarly responded to Texas’s request to enforce its anti-drag law during its appeal of an injunction entered blocking enforcement of the law, not granting it and instead ordering it “carried with the case.” There, as Law Dork covered, the ruling at issue was a permanent injunction and the panel noted it was taking the action in the context of the state not having sought any expedited review — and, in fact, seeking extensions that were slowing down the case. In the Spectrum WT case, as noted above, expedited review was sought and denied.

Despite that, and as is often the response, the merits panel in the Spectrum WT case has done nothing with the students’ request.

All of that led to Monday’s Supreme Court filing, as simple and direct as it should be:

The response is due March 13 — nine days before Spectrum WT’s students are trying to hold their 2024 charity drag show on March 22.

What does all of this mean?

This is not the worst legal travesty — in terms of its effects. In fact, there are worse actions taken by the Fifth Circuit regularly, sometimes weekly.

This is crystallizing, however, because it is is such a clear case of an ongoing constitutional violation that an ideological district court judge has empowered and that the appeals court has, thus far, enabled — forcing a case to the Supreme Court that should never have gotten there.

Now, the only question remaining is whether even the Supreme Court will put Matt Kacsmaryk and Walter Wendler in their proper constitutional place.