Spectrum WT v. Wendler

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

SPECTRUM WT, ef ail.,

Plaintiffs,

v. 2:23-CV-048-Z,

WALTER WENDLER, et al.,

Defendants.

MEMORANDUM OPINION

AND ORDER

Before the Court are Defendant Wendler’s Motion to Dismiss Under Rules 12(b)(1) and

12(b)(6) (“Wendler’s Motion”) (ECF No, 34), Defendants’ Motion to Dismiss (“Defendants’ Motion’)

(ECF No, 38), and Plaintiffs’ Amended Motion for Preliminary Injunction (“Amended Motion’) (ECF

No. 30). Having considered the motions, briefing, and relevant law, the Court GRANTS IN PART

Wendler’s Motion and Defendants’ Motion, and DENIES Plaintiffs’ Amended Motion.

BACKGROUND

Plaintiffs are a recognized student organization (“Spectrum WT”) at West Texas A&M

University (“WT”) and two of Spectrum WT"s officers. ECF No. 28 at 5-6, Plaintiff Spectrum WT

strives to “provide a safe space for LGBT+ students and allies to come together,” to “raise awareness

of the LGBT+ community,” and to “promote diversity, support, and acceptance on campus and in the

surrounding community.” /d. at 4. In furtherance of that mission, Spectrum WT hosts events such as

“Lavender Prom, Queer History Night, and Queer Movie Night.” /d. at 5, Plaintiffs also planned a

March 2023 fundraiser at a WT “campus event hall” to raise funds for LGBT+ suicide prevention. Jd.

at 1. In papers filed with this Court, Plaintiffs describe the proposed event as a “drag show” open to

children accompanied by a parent or guardian. /d, at 18.

The proposed event was tentatively scheduled for April 1 and branded “A Fool’s Drag Race.”

Id. at 15, Due to a scheduling conflict, Spectrum WT agreed to hold the show one day earlier. /d.

But before WT confirmed the event, Defendant Walter Wendler (“President Wendler’) stated his

opposition in a letter dated March 21, 2023: “[WT] will not host a drag show on campus.” ECF No, 28-

1 at 2-3. In the letter, President Wendler analogized to another type of “theatrical performance” —

“blackface” minstrelsy' — to explain his opposition to any event exaggerating, stereotyping, mocking,

or objectifying a person “based on appearance, bias or predisposition”:

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... . Should I let rest misogynistic

behavior portraying women as objects?

He af

Drag shows are derisive, divisive and demoralizing misogyny, no

matter the stated intent. Such conduct runs counter to the purpose of

WT. A person or group should not attempt to elevate itself or a cause by

mocking another person or group.

Asauniversity president, | would not support “blackface” performances

on our campus, even if told the performance is a form of free speech or

intended as humor. It is wrong. I do not support any show, performance

or artistic expression which denigrates others — in this case, women —

for any reason....

Mocking or objectifying in any way members of any group based on

appearance, bias or predisposition is unacceptable .... No one should

claim a right to contribute to women’s suffering via a slapstick sideshow

that erodes the worth of women, When humor becomes harassment, it

has gone too far.

Id.

' “What we call blackface minstrelsy is a specific performance genre that developed in early 19th-century America,

with the earliest performance documented in 1830, Featuring characters with names like Jim Crow, Zip Coon and

Mammy, these performances comprised skits, monologues, songs and dances that supposedly imitated those of

enslaved people or of the recently freed. Blackface is used ‘to mock or ridicule Black people’; it is considered deeply

offensive.” Smith v. Salvation Army, 2023 WL 2252380, at *6 (N.D, Ala, Feb. 27, 2023) (citations omitted),

President Wendler averred that “harassment”? was inconsistent with WT’s vision statement,

the Texas Education Code, and federal workplace rules enforced by the U.S. Equal Employment

Opportunity Commission, linking relevant websites. Jd at 3-4. Throughout the letter, President

Wendler expressed support for the underlying mission and message of the proposed event — ie.,

preventing suicide in the LGBT+ community by raising money for The Trevor Project. See id. at 4

(“Supporting the Trevor Project is a good idea.”). In closing, President Wendler offered a simple

recommendation: “[S]kip the show and send the dough.” Jd.

Plaintiffs filed and then withdrew their motion for a temporary restraining order after electing

to host the event off campus. ECF No. 16. But Plaintiffs still seek injunctive and declaratory relief in

addition to damages under 42 U.S.C. § 1983 because their future events are allegedly “in imminent peril

due to President Wendler’s edict.” ECF No. 31 at 15. These include “Queer Movie Night,” “Queer

History Night,” and a second drag show tentatively set for March 2024. ECF No, 28 at 26.

OVERVIEW

Free Speech jurisprudence only intermittently invokes the his/orical analysis applied to other

Amendments and Clauses. See, e.g., N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 1428, Ct.2111, 2161

(2022) (applying a Second Amendment “text, history, and tradition” test); Am. Legion v. Am, Humanist

Ass'n, 139 S. Ct. 2067, 2087 (2019) (explaining that Establishment Clause jurisprudence “looks to

history for guidance”), Said historical analysis reveals a Free Speech ecosystem drastically

different from the “expressive conduct” absolutism of Plaintiffs’ briefing: (1) the Founders focused

on “prior restraints” of publication — specifically, political pamphlets, (2) draft Free Speech

Clauses focused on protecting the “right to speak, to write, or to publish their sentiments,”

(3) Blackstone treatises extolled “freedom of thought” and recognized a police power “to censure

licentiousness,” (4) the Comstock Act of 1873 prohibited the mailing of “obscene, lewd or

lascivious” materials, and (5) Joseph Story’s Commentaries defined the Free Speech Clause as

protecting the “right to speak, write, and print .. . opinions upon any subject whatsoever, without any

prior restraint,” but vor the right to “injure any other person in his rights, person, property, or reputation”

or “to disturb the public peace.””

As written, ratified, and adjudicated for 150 years, the Free Speech Clause harmonized disparate

and competing interests using “text, history, and tradition” as guideposts, sometimes a sliding scale:

political speech versus commercial speech;? pornography versus obscenity;* viewpoint versus content;>

traditional versus designated versus limited public forums;° thought versus speech versus conduct,’ ete.

Many Free Speech categories were subject to “reasonable time, place, and manner” restrictions.*

Beginning in the late 20th Century, Free Speech jurisprudence absorbed “expressive individualism”

as the new sine qua non of First Amendment analysis. See Jeffrey A. Kaplan, The Republic of Choice:

Law, Authority, and Culture. 27 HARV. J. ON LEGIS. 613 (1990) (“Expressive individualism”

emphasizes “self-expression, that is, cultivating the inner human being, expanding the self, developing

the special qualities and uniqueness of each person.”) (citations omitted); see also Carl R. Trueman,

The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road

to Sexual Revolution 26-80 (2022),

* See generally | Annals of Cong, 434 (1789); St. George Tucker, Blackstone's Commentaries, l:App. 298-99, 2:App.

12-25, 27-30; Comstock Act of 1873, THE FIRST AMENDMENT ENCYCLOPEDIA, 2009; 3 Joseph Story, Commentaries

on the Constitution of the United States, § 1874, at 732 (Boston & Co. 1833).

3 Compare W. Va. State Bd. of Educ. v, Barnette, 319 U.S. 624, 642 (1943) with Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc,, 425 U.S, 748, 758 (1976),

4 Compare Paris Adult Theatre I y. Slaton, 413 U.S. 49, 57 (1973) with Miller v. California, 413 U.S. 15, 24 (1973),

5 Compare Reed v. Town of Gilbert, 135 S, Ct, 2218, 2230 (2015) with Hurley v, Irish-American Gay, Lesbian and

Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995),

Compare Hague y. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) with Christian Legal Soe.

Chapter of the Univ. of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 680 (2010).

? Compare Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) with City of L.A, v. Taxpayers for Vincent, 466 U.S.

789, 812 (1984),

® See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Cent. Hudson Gas & Elee. Corp. v, Pub. Serv. Comm’n of New

York, 447 U.S, 557 (1980); Perry Educ, Ass'n vy, Perry Loc. Educators’ Ass'n, 460 U.S, 37 (1983); Turner Broad,

Sys,, [ne v. F.C.C., 512 U.S, 622 (1994),

But the newer cases retained older rules relevant to protests, forums, time, place, and manner

— plus an important outer limit on “expressive conduct,” especially sexwalized “expressive conduct”:

When children are involved, the calculation changes.” Here, Plaintiffs expressly contemplate and even

advertise the involvement of children. ECF No, 28 at 18.

APPLICATION

Plaintiffs neither plead a “clearly established right” to host a sexualized drag show on campus,

nor that President Wendler’s response was “objectively unreasonable.” And although Plaintiffs recite

and repeat “expressive conduct” boilerplate from landmark cases, they elide the constitutional and

statutory taxonomies necessary to decide a Free Speech campus case — at least at this MTD Phase.

Specifically, Plaintiffs failed to plead adequate facts and arguments in four categories of First

Amendment law necessary to overcome qualified immunity protections:

First, if the “fundraiser” features cross-dressing like other theatrical performances, but not an

“overtly political” message, does it convey the “intentional and overwhelmingly apparent” message

required in the “campus protest” cases applicable to school settings? See, e.g., Tinker v, Des

Moines Indep. Cty. Sch. Dist., 393 U.S. 503, 504 (1969); Texas v. Johnson, 491 U.S. 397, 406

(1989); Spence v. State of Wash., 418 U.S. 405, 409 (1974) (the Court must “determine whether

his activity was sufficiently imbued with elements of communication to fall within the scope of

the First and Fourteenth Amendments’’). Notably, the landmark cases cited by Plaintiffs include a

warning to this Court: “We cannot accept the view that an apparently limitless variety of conduct

See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002) (“The freedom of speech has its limits; it does not

embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with

real children.”); Ginsberg v. State of N.Y., 390 U.S, 629, 639 (1968) (the state may ban the sale of indecent magazines

to minors); Sable Comme'ns of Cal, Inc. v. F.C.C., 492 U.S. 115, 134 (1989) (To be sure, the Government has a

strong interest in protecting children against exposure to pornographic material that might be harmful to them,”)

(Breyer, J., concurring in part); United States v. Am. Libr. Ass'n, Inc., 539 U.S. 194, 214 (2003) (upholding

requirement that library computers filter out content harmful to minors).

can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express

an idea.” United States v. O'Brien, 391 U.S. 367, 376 (1968). As pled, Plaintiffs proposed event

does not obviously convey or communicate a discernable, protectable message.

Second, using “textbook” as an adjective is no substitute for the forum analysis required in

a Free Speech campus case — i.e., the analysis that determines whether the alleged discrimination

is “content” or “viewpoint” specific. See ECF Nos. 31 at 21 (“That is textbook content

discrimination.”); 28 at 2 (“Wendler’s edict is textbook viewpoint discrimination . . . .”) (emphasis

added), Similarly, that Texas Education Code § 51,9315 protects “traditional public forums” in

“common outdoor areas” is not necessarily determinative of the question here: Is the relevant WT

facility a “traditional public forum,” “designated public forum,” “limited public forum,” or “non-

public forum” for purposes of First Amendment analysis? See ECF No, 28-3 at 3 (“Examples of

traditional public forums include public streets, sidewalks, plazas, lawns, and parks.”).

Thus far, Plaintiffs’ forum analysis falls flat.

Third, Plaintiffs acknowledge and attach WT policies stating that “expressive activity” is

subject to “reasonable time, place, and manner restrictions,” consistent with First Amendment

requirements, but consign the issue and their analysis to a single footnote. ECF No. 28-3 at 2-5;

ECF No. 31 at 20 n.3 (“Since [WT] is prohibiting drag shows outright ... the time, place, or

manner test is inapplicable.’”’), But this Court cannot so easily ignore binding Supreme Court

precedent holding that sexualized conduct is more regulable under various First Amendment

doctrines — especially when children are in the audience. See, e.g., City of Erie v. Pap's A.M., 529

U.S. 277, 295 (2000) (holding public nudity ban “may place incidental burdens on some protected

speech”); /.C.C. v. Pacifica Found., 438 U.S. 726, 732 (1978) (finding FCC may regulate

monologue referencing “sexual activities” because “children are in the audience”), Thus, even if

Plaintiffs’ proposed event is lawful, WT could arguably regulate the “time, place, and manner” of

the show to protect children.

Fourth, President Wendler’s letter expressly or impliedly invoked countervailing federal,

state, and WT policies relevant to harassment of other protected classes — specifically, women,

ECF No, 28-1 at 2-3, Yet Plaintiffs never explain how or if Defendants must reconcile these competing,

conflicting legal obligations. See, e.g., 20 U.S.C. § 1681 (a); 34 C.LF.R. § 106.8(c); see also Texas H.B.

No. 900, $.B. No. 12. At this MTD Phase, Plaintiffs have not addressed or analyzed President Wendler’s

arguably reasonable efforts to reconcile binding harassment laws, regulations, and policies with

applicable Free Speech standards,

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the Court evaluates the pleadings by

“acceptling| ‘all well-pleaded facts as true, viewing them in the light most favorable to the

plaintiff.’” Barnett v. Perfect Search Corp., No. 3:14-CV-2840-D, 2014 WL 6805529, at *1 (N.D.

Tex, Dec. 3, 2014) (quoting Jn re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (Sth Cir.

2007)). To survive a motion to dismiss, a complaint must allege enough facts “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A case

is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) “when the court

lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss.,

Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (Sth Cir. 1998), And “a defendant’s entitlement

to qualified immunity should be determined at the earliest possible stage of the litigation.” Ramirez

v, Guadarrama, 3 F.4th 129, 133 (Sth Cir. 2021) (per curiam), cert. denied, 142 8, Ct, 2571 (2022).

To be entitled to a preliminary injunction, an applicant must show: (1) a substantial

likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is

not granted; (3) the threatened injury outweighs the threatened harm to the party whom he seeks

to enjoin; and (4) the granted injunction will not disserve the public interest. See Bluefield Water

Ass'n, Inc. v, City of Starkville, 577 F.3d 250, 252-53 (5th Cir. 2009). A plaintiff bears the burden

on all four factors, and failure on any one of them warrants denial. /d, at 253.

ANALYSIS

A. President Wendler Is Entitled to Qualified Immunity

Qualified immunity protects government officials acting within their authority from

individual liability “when their actions could reasonably have been believed to be legal.” Morgan

v, Swanson, 659 F.3d 359, 412 (Sth Cir. 2011) (“Morgan I’). And “[w]here there are no allegations

of malice, there exists a ‘presumption in favor of qualified immunity’ for officials in general, and

for educators in particular.” Morgan v, Swanson, 755 F.3d 757, 760 (Sth Cir. 2014) (internal marks

omitted). This is especially true “where the area of law is as ‘abstruse’ and ‘complicated’ as First

Amendment jurisprudence.” /d. at 761 (internal marks omitted).'° Indeed, because “the nearly

universal prohibition against viewpoint discrimination does not inform an official as to what,

precisely, constitutes viewpoint discrimination,” “sweeping statements” about the First

Amendment “are not sufficient to deprive a teacher of qualified immunity.” /d. Thus, “educators

are rarely denied immunity from liability arising out of First-Amendment disputes.” /d. at 760.

To defeat the presumption in favor of qualified immunity, Plaintiffs must show: (1) the

official “violated a statutory or constitutional right”; and (2) the right was “clearly established at

the time.” Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022), However, judges “are free to decide

which prong of the qualified immunity analysis to address first.” Taylor v, LeBlanc, 68 F.4th 223,

See also Robertson vy, Anderson Mill Elementary Sch,, 989 F.3d 282, 288 (4th Cir, 2021) (in “gray areas” where the

law is “unsettled or murky,” qualified immunity protects actions that are “not clearly forbidden”); 8.1. ex rel. Hawk

y. Easton Area Sch, Dist,, 725 F.3d 293, 308 (3d Cir, 2013) (courts “must take into account” that school officials must

often act “suddenly and unexpectedly” based on their experience).

227 (5th Cir. 2023). Substantively, a clearly established right is one “sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Mullenix v.

Luna, 577 U.S. 7, 11 (2015). And it is the plaintiff's burden “to find a case in his favor that does

not define the law at a high level of generality.” Rich v, Palko, 920 F.3d 288, 294 (Sth Cir. 2019).

That said, there is no requirement that a case be “directly on point for a right to be clearly

established,” but existing precedent must “squarely govern|]” the specific facts at issue to place

“the statutory or constitutional question beyond debate.” Kisela v. Hughes, 1385. Ct. 1148, 1152

(2018); Joseph on behalf of Est. of Joseph v, Bartlett, 981 F.3d 319, 337 (Sth Cir. 2020)."|

Lastly, “[e]ven if the government official’s conduct violates a clearly established right, the

official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.”

Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (Sth Cir. 2005). “In other words, immunity protects

all but the plainly incompetent or those who knowingly violate the law.” Kisela, 138 S. Ct. at 1152

(citing White v. Pauly, 580 U.S. 73, 79 (2017)).

I, Plaintiffs have not alleged facts sufficient to prove President Wendler violated a

“clearly established right” or that his conduct was “objectively unreasonable.”

Here, there is no dispute that President Wendler’s action was within the scope of his

discretionary authority. Thus, Plaintiffs must demonstrate President Wendler violated their

“clearly established rights” to overcome the presumption in favor of qualified immunity. At this

MTD Phase, Plaintiffs fall short.

'! The Supreme Court has held that “officials can still be on notice that their conduct violates established law even in

novel factual circumstances.” Hope v. Pelzer, 536 U.S, 730, 741 (2002), But “//ope’s holding historically has been

applied to only the ‘rare obvious case,” involving ‘extreme circumstances,’ or ‘particularly egregious’ misconduct.”

Frasier v. Evans, 992 F.3d 1003, 1021 (10th Cir. 2021), cert, denied, 142 S. Ct. 427 (2021); see also Morgan 1, 659

at 373 (Hope is limited to “a certain category of ‘obvious’ cases”), This is not the sort of “obvious” case that

implicates Hope and its progeny. See, e.g., Taylor v. Riojas, 141 8, Ct, $2, 53 (2020) (denying qualified immunity to

correctional officers where inmate “was left to sleep naked in sewage” for six full days).

Plaintiffs’ best case is a non-binding, forty-year-old opinion concerning a male beauty

pageant from the Western District of Oklahoma. See Norma Kristie, Inc. v. City of Okla. City, 572

F, Supp. 88, 91 (W.D. Okla. 1983). But Norma Kristie is distinguishable for at least three reasons.

First, it is not a campus case and therefore cannot clearly establish the rights of students on campus

beyond debate. See, e.g., Doe v. Silsbee Indep. Sch, Dist., 440 Fed. Appx. 421, 427 (Sth Cir. 2011)

(per curiam) (“It is also well settled that students’ First Amendment rights are curtailed while in

school.”). Second, the defendants in Norma Kristie did not produce “a shred of evidence that the

pageant includes depictions of sexual conduct” to support their conclusion that the event was

“obscene.” Norma Kristie, 572 F. Supp at 92. Third, Nerma Kristie’s holding that the pageant

constituted protected “expression” is questionable when applied to the facts of this case. /d. at 91.

a. As presented to President Wendler, the proposed event does not necessarily survive the

First Amendment taxonomies that apply in campus settings, where children are in the

audience — at least not at this MTD Phase.

The First Amendment “protects an individual’s right to speak his mind regardless of

whether the government considers his speech sensible and well intentioned.” 303 Creative LLC y.

Elenis, 143 8, Ct. 2298, 2312 (2023). Historically, First Amendment jurisprudence countenanced

reasonable limits on Free Speech as the alleged expression moved from “thought” to “speech” to

“conduct.”!* Today, First Amendment protection for the latter extends “only to conduct that is

inherently expressive.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006).'

2 See, e.g., Jud Campbell, Natural Rights and the First Amendment, 127 YALE L. J. 246, 256 (2017) (There is no

evidence, for instance, that the Founders denied legislative authority to regulate expressive conduct in promotion of

the public good — a principle that runs contrary to countless modern decisions.”) (emphasis added); id. at 286 n,188;

see also O'Brien, 391 U.S, at 376 (articulating and applying a four-part test for judging the validity of content-neutral

regulations that incidentally impact expression); Dee v, City of Lafayette, Ind., 377 F.3d 757, 765 (7th Cir, 2004)

(“[R]egulations aimed at conduct which have only an incidental effect on thought do not violate the First Amendment’s

freedom of mind mandate,”),

3 See, eg., Schultz v. City af Cumberland, 228 F.3d 831, 841 (7th Cir, 2000) (“In most cases, the government may

regulate conduct without regard to the First Amendment because most conduct carries no expressive meaning of First

Amendment significance.”).

10

“In deciding whether particular conduct possesses sufficient communicative elements to

bring the First Amendment into play,” this Court must ascertain whether “[a]n intent to convey a

particularized message was present, and [whether] the likelihood was great that the message would

be understood by those who viewed it.” Johnson, 491 U.S. at 404, Courts have “considered the

context in which it occurred,” and whether “|t]he expressive, overtly political nature of thle] conduct

was both intentional and overwhelmingly apparent.” /d, at 405-06. And while “[i]t is possible to find

some kernel of expression in almost every activity a person undertakes .. . such a kernel is not

sufficient to bring the activity within the protection of the First Amendment.” City ef Dallas v,

Stanglin, 490 U.S. 19, 25 (1989). Accordingly, a party must advance more than a mere “plausible

contention” that its conduct is expressive. Church of Am. Knights of the KKK yv. Kerik, 356 F.3d

197, 205 (2d Cir, 2004) (holding that white masks worn by Klan members have no independent

expressive value)!

Though apparel and attire “are certainly a way in which people express themselves,

clothing as such is not — not normally at any rate — constitutionally protected expression.”

Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (Posner, J.).'°

Notably, the Supreme Court “did not alter these standards” in subsequent cases, Kerik, 356 F.3d at 205 n.6 (“While

we are mindful of Hurley's caution against demanding a narrow and specific message before applying the First

Amendment, we have interpreted //ur/ey to leave intact the Supreme Court’s test for expressive conduct in Texas v,

Johnson.”) (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S, 557, 569 (1995)). Importantly,

Hurley only “disallowed compelled, participatory speech,” and does not extend to circumstances “where a speaker in

a public forum seeks only to be heard, not to have his speech included or possibly confused with another's, and has

not violated a valid statute or ordinance.” Startzell v, City of Phila., Pa., 533 F.3d 183, 194 (3d Cir. 2008); Gathright

v, City of Portland, Or., 439 F.3d 573, 578 (9th Cir, 2006); see also Kleinman v. City of San Marcos, 597 F.3d 323,

327 (Sth Cir. 2010) (sharing the Second Circuit’s post-/urley “skepticism that the heavy machinery of the First

Amendment is to be deployed in every case involving visual non-speech expression”). It is therefore not the case that

“Tblallet, orchestra, paintings, sculptures, saluting, kneeling in prayer, kneeling in protest, photography, and even

opera would lack First Amendment protection” if “President Wendler had his way.” ECF No, 45 at 20, Axiomatically,

these actions either “convey a particularized message” or are “works of fine art.” Johnson, 491 U.S, at 404; Kleinman,

597 F.3d at 327,

See also Blau v, Fort Thomas Pub. Sch. Dist,, 401 F.3d 381, 390 (6th Cir, 2005) (the First Amendment does not

protect “vague and attenuated” notions of self-expression); Zalewska v. Cnty. of Sullivan, N.Y., 316 F.3d 314, 320 (2d

Cir. 2003) (“[A] person’s choice of dress or appearance in an ordinary context does not possess the communicative

elements necessary to be considered speech-like conduct entitled to First Amendment protection.”); Canady v, Bossier

11

Instead, courts have applied Free Speech protection to manners of dress only when and where the

context “establish[es] that an unmistakable communication is being made.” Edge v. City of Everett,

929 F.3d 657, 668 (9th Cir. 2019) (“Because wearing pasties and g-strings while working at Quick-

Service Facilities is not ‘expressive conduct’ within the meaning of the First Amendment, the

Dress Code Ordinance does not burden protected expression.”); Edge v. City of Everett, 291 F.

Supp. 3d 1201, 1204 (W.D, Wash. 2017). Thus, the Ninth Circuit rejected the argument that

scantily clad baristas conveyed a Free Speech-protected message of “fearless body acceptance and

freedom from judgment.” Edge, 291 F. Supp. 3d at 1204. And consequently, at this point in Free

Speech jurisprudence, it is not clearly established that all “drag shows” are categorically

“expressive conduct.” See dge, 929 F.3d at 669,

Furthermore, as Plaintiffs admit, some drag shows “are intentionally risqué, some comedic,

some outlandish, and some would not give a moment’s pause to a Motion Picture Association

reviewer.” ECF No, 28 at 18. Accordingly, an objective viewer observing biological men

“performing” while dressed in attire stereotypically associated with women — without

accompanying political speech or dialogue — would not necessarily discern an “unmistakable” or

“overwhelmingly apparent” communication of “LGBTQ+ rights,” /d. at 17.'° For example,

persons viewing “male football players posing in cheerleader skirts” or the drag scene from the

1943 film “This is the Army” are unlikely to discern a political message. /d. And even if

Par, Sch, Bd., 240 F.3d 437, 440 (5th Cir, 2001) (“[A] male student’s choice of hair length [does] not convey sufficient

communicative content to warrant First Amendment coverage.”); Stephenson vy. Davenport Cmty. Sch, Dist,, 110 F.3d

1303, 1307 n.4 (8th Cir, 1997) (upholding school’s ban on students displaying gang tattoos because the tattoos were

“nothing more than ‘self-expression’”); Star v. Gramley, 815 F. Supp. 276, 279 (C.D, Ill. 1993) [T]he plaintiff has

no ‘clearly established’ right to cross-dress ....”); but see A.A, ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 701

F, Supp, 2d 863, 882 (S8.D. Tex, 2009), aff'd, 611 F.3d 248 (Sth Cir. 2010) (*A.A.’s braids convey a particularized

message of his Native American heritage and re/igion.”) (emphasis added),

See Rumsfeld, 547 U.S, at 66 (“The fact that such explanatory speech is necessary is strong evidence that the conduct

at issue here is not so inherently expressive that it warrants protection... .”); Voting for Am., Ine. v, Steen, 732 F.3d

382, 388 (Sth Cir, 2013) (“Conduct does not become speech for First Amendment purposes merely because the person

engaging in the conduct intends to express an idea.”),

12

explanatory speech could aid Plaintiffs, the context of this show does not help, That is because an

observer may not discern that the performers’ conduct communicates “advocacy in favor of

LGBTQ+ rights.” See Tagami v. City of Chi., 875 F.3d 375, 378 (7th Cir, 2017) (Sykes, J.)

(rejecting argument that a woman’s public nudity in the context of “GoTopless Day”

communicated a message of political protest against gender-specific standards of public decency

because such message was not “overwhelmingly apparent” to onlookers).

Plaintiffs cite Schacht v. United States to argue the First Amendment affords protection

whenever “people get on stage and perform.” 398 U.S. 58, 63 (1970). But Schacht’s holding turned

on core political speech — specifically, the “right openly to criticize the Government during a

dramatic performance.” /d. There, the “preparation and repeated presentation by amateur actors of

a short play designed to create in the audience an understanding of and opposition to our

participation in the Vietnam War.” Jd, at 61. Thus, core political speech was at issue — not mere

expressive conduct and certainly not sexualized expressive conduct. Similar facts have not been

alleged in this case.

Additionally, the Supreme Court’s decision in Schad v. Borough of Mount Ephraim is

unavailing. 452 U.S. 61, 76 (1981). There, the Court held unconstitutionally overbroad an

ordinance banning “a// live entertainment, including nonobscene nude dancing . . . otherwise

protected by the First Amendment.” /d. at 76 (emphasis added); see also Fowler v. Bd. of Educ. of

Lincoln Cnty., Ky., 819 F.2d 657, 664 n.8 (6th Cir, 1987) (“[I]n determining whether a given type

of entertainment is protected by the First Amendment, [courts] look to the kind of entertainment

involved and the appropriateness of the entertainment under the circumstances such as the time

and place where offered.”); Jones v. Schneiderman, 974 F. Supp. 2d 322, 334 n.4 (S.D.N.Y. 2013)

(Schad “did not categorically hold that all ‘live entertainment’ qualifies for First Amendment

13

protection.”). Unlike Schad, Fowler, or Schneiderman, there are no overbreadth issues or

arguments in this case.

Furthermore, Plaintiffs miscite and misread Se. Promotions, Ltd. v. Conrad, 420 U.S. 554

(1975). Like Norma Kristie, Conrad concerned a controversial show on municipal property — not

a university campus. /d. at 556. And the show was a “rock musical” rather than a “drag show,” or

what the Supreme Court characterized as “live drama.” /d. at 557. Specifically, the performance

entailed “the acting out — or singing out — of the written word,” and “mixe[d] speech with live

action or conduct.” /d, at 557-58. Lastly, Conrad “predate[s] the Supreme Court’s delineation of

limited public fora as a distinct type of government property.” Celebrity Attractions, Inc, v. Okla.

City Pub, Prop, Auth,, 660 Fed. Appx. 600, 604 (10th Cir. 2016).'’ Thus, Conrad cannot establish

Plaintiffs’ asserted right “beyond debate.” Kisela v. Hughes, 138 8. Ct. 1148, 1152 (2018).

Because men dressed in attire stereotypically associated with women is not “overtly

political” in a category of performative conduct that runs the gamut of transvestitism — e.g.,

onnagata in kabuki, Sigma Chi fraternity brothers in a distasteful “ugly woman” contest,

jogappa priests worshiping Yellamma, and Matt Damon depicting a Yale University thespian in

The Good Shepherd — it is not clearly established that all drag shows are inherently expressive as

defined in Johnson. 491 U.S, at 406,"

'? See also Fairchild v. Liberty Indep, Sch. Dist,, 597 F.3d 747, 758 (Sth Cir, 2010) (discussing “traditional and

designated public forums,” “limited public forums,” and “nonpublic forums”), “Regulation of speech in traditional or

designated public forums must pass strict scrutiny with a compelling state interest and narrow tailoring.” /d. But the

government may restrict speech in /imited public forums if the regulation “(1) does not discriminate against speech

on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum,” /d.

'8 Norma Kristie also undermines Plaintiffs’ argument. To the extent the pageant in Norma Kristie can be equated

with present-day drag shows, the court noted female impersonations by males “may not be necessarily equated with

homosexuality.” 572 F. Supp. at 92. Thus, at this MTD Phase, it is unclear how drag shows unmistakably communicate

advocacy for LGBT+ rights. See, GAYS AGAINST GROOMERS, https://www.gaysagainstgroomers,com/about

(“The overwhelming majority of gay people .. . directly oppose[] the sexualization and indoctrination of children,

This includes drag queen story hours [and] drag shows involving children.”),

14

b. President Wendler’s conduct was not “objectively unreasonable. ”

But even if the First Amendment is implicated, President Wendler knew of potential

lewdness, which is prohibited under school policy. ECF No, 37 at 7 (prohibiting “[p]ublic behavior

that is disruptive, lewd, or indecent”) (alteration in original).'” And 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. Bethel Sch. Dist. No. 403 v, Fraser, 478 U.S. 675, 685 (1986); Sasser v, Bd. of Regents of

Univ. Sys. of Ga., No. 21-14433, 2023 WL 2446720, at *5 (11th Cir. Mar. 10, 2023).”° Here,

Plaintiffs advised President Wendler the event would be open to children, ECF No, 28 at 18.

Although Plaintiffs attest the show was rated “PG-13” — a term undefined by Plaintiffs but

presumably based on the familiar Motion Picture Association (“MPA”) ratings’! —

contemporaneous media accounts of similarly advertised events reflect a range of highly

sexualized content.”*

Sex-specific conduct is often subject to lesser protections under the First Amendment. See, e.g., City of Erie v. Pap's

A.M., 529 U.S. 277, 295 (2000) (“[T]here is nothing objectionable about a city passing a general ordinance to ban

public nudity even though such a ban may place incidental burdens on some protected speech”) (internal marks

omitted); Miller v, California, 413 U.S. 15, 26 (1973) (“At a minimum, prurient, patently offensive depiction or

description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment

protection.”); Schuliz, 228 F.3d at 841 (“[A] general prohibition on all public nudity receives intermediate scrutiny,

rather than strict scrutiny, when the government offers as its legislative justification the suppression of public nudity’s

negative secondary effects.”’)

20 “While the Court ‘made clear that students do not ‘shed their constitutional rights to freedom of speech or expression

at the schoolhouse gate,’ the Court also held in Bethel that ‘the constitutional rights of students in public school are

not automatically coextensive with the rights of adults in other settings.’” Sasser, WL 2446720, at “5 (cleaned up).

This makes it “all the more obvious that the law in this area is not so clearly established to put [President Wendler] on

notice so as to defeat qualified immunity.” Sasser, WL 2446720, at "5,

21 The Classification and Ratings Administration brochure published by the predecessor MPAA defines “PG” to

include “violence or brief nudity” and the stronger “PG-13” label communicates a “stronger caution for parents” that

the content includes “stronger language, extended violence or sexual situations and drug-use.” Kendra Moyses, What

do Movie Ratings Mean?, MICH. STATE UNIV. EXTENSION (Sept. 27, 2017), https://www.canr.msu.edu/news/what_do

_movie ratings mean. Today, MPA states that “[a] PG-13 motion picture may go beyond the PG rating in theme,

violence, nudity, sensuality, language, adult activities or other elements . . . .” Classification and Rating Rules,

MOTION PICTURE ASS’N INC. 6-7 (July 24, 2020), https://www. filmratings.com/content/downloads/rating_rules.pdf.

22 See, e.g., Christopher F. Rufo, The Real Story Behind Drag Queen Story Hour, Crry J. (Oct, 2022) https://www.city-

journal.org/the-real-story-behind-drag-queen-story-hour (collecting stories),

15

Although the Court infers in Plaintiffs’ favor that the show would not have been lewd,

Plaintiffs do not allege President Wendler was aware of their efforts to purge lewdness. See ECF

No. 28 at 18: Brown v. Callahan, 623 F.3d 249, 253 (Sth Cir, 2010) (“A qualified immunity

defense alters the usual summary judgment burden of proof.”). Additionally, Plaintiffs selected an

emcee whose past performances were arguably inappropriate for children of any age: Myss Myka’s

performance involved “stimulated stripping (and accepting money from audience members as if

he were a stripper), simulated masturbation, bouncing feminine breasts (possibly prosthetic,

possibly not), and frequent presentation of his barely covered crotch.” ECF No. 37 at

“[T]here is a compelling interest in protecting the physical and psychological well-being

of minors.” Sable Comme’ns of Ca., Inc. v. F.C.C., 492 U.S. 115, 126 (1989); see also New York

v, Ferber, 458 U.S. 747, 757 (1982) (“The prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing importance.”’), Thus, even if clearly established

rights were violated, President Wendler’s decision was still “objectively reasonable.” Wallace, 400

F.3d at 289.

c. Plaintiffs misstate and misapply the remaining First Amendment cases.

Plaintiffs cite Papish v. Bd. of Curators of Univ. of Mo., which involved a campus

newspaper and a political cartoon “depicting policemen raping the Statue of Liberty and the

Goddess of Justice.” 410 U.S. 667, 667 (1973). There, the Supreme Court held that “the mere

dissemination of ideas — no matter how offensive to good taste — on a state university campus

may not be shut off in the name alone of ‘conventions of decency.’” /d. at 670. But Papish cannot

clearly establish Plaintiffs’ asserted right because “[t]he government generally has a freer hand in

restricting expressive conduct than it has in restricting the written or spoken word.” Johnson, 491

*3 See Elies Baltimore, Myss Myka Performing 2-24-23, YouTube (Feb. 27, 2023), https://www.youtube,com/

watch?v=QR9B]FpPeKO.

16

U.S. at 406. (emphasis added). That a school newspaper cannot censor political cartoons does not

“clearly establish” a right to parade Myss Myka’s “barely covered crotch” before an audience that

includes children arrayed in a limited public forum. ECF No. 37 at 6. And it was offensive conduct

that President Wendler’s email purported to restrict — not offensive ideas or political messages.

In fact, President Wendler expressly supported the “noble cause” of raising funds for LGBT+

suicide prevention. See ECF No, 28-1 at 2, 4 (“Supporting The Trevor Project is a good idea.

My recommendation is to skip the show and send the dough.”).”*

Next, Plaintiffs cite JOTA XI] Chapter of Sigma Chi Fraternity v. George Mason Univ, , 993

F.2d 386 (4th Cir. 1993), But this too did not concern a “drag show.” Sigma Chi involved a male

fraternity’s “ugly woman contest” — “an exercise of teenage campus excess” with an “obvious

sophomoric nature.” /d. at 389, In the university’s view, the problem was not the conduct itself.

Rather, “the message conveyed” by the contest “ran counter to the views” the university promoted:

“racial integration and gender neutrality.” /d, at 392-93, Accordingly, the court applied Johnson

and found a message “likely to be understood” by the audience — “that racial and sexual themes

should be treated lightly.” /d. at 391-92. Additionally, the school issued sanctions that “included

suspension from all activities for the rest of the 1991 spring semester,” “a two-year prohibition on

all social activities,” and “required Sigma Chi to plan and implement an educational program

addressing cultural differences, diversity, and the concerns of women.” /d, at 388. Thus, the

question was not whether Sigma Chi had an unqualified constitutional right to dress members in

outlandish and stereotypically female attire. Jd. The question was whether the school could punish

For similar reasons, President Wendler’s action does not constitute “viewpoint discrimination” because it does not

discriminate based on “the specific motivating ideology or the opinion or perspective of the speaker,” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); see also Robertson, 989 F.3d at 290 (rejecting argument

that school principal’s refusal to include a student’s LGBT-themed essay in a class essay booklet was

viewpoint discrimination),

17

the fraternity “because its boorish message had interfered with the described University mission.”

Id, at 392, But here, Plaintiffs have not been sanctioned by President Wendler, And it is the conduct

contained in the fundraiser that President Wendler identified as the problem — not the message.

ECF No. 28-1 at 3.

Plaintiffs next turn to the Fourth Circuit case, Berger v. Battaglia, 779 F.2d 992 (4th Cir,

1985), There, the issue was whether “the Baltimore Police Department could condition the

continued employment of one of its police officers upon his cessation of off-duty public

entertainment performances in blackface that members of Baltimore’s black community found

offensive.” /d. at 993. Hence, Berger involved neither drag shows nor campuses, but instead the

heavily regulated public employee sector.”° And indeed, Berger’s only real similarity to this case

is that it broadly concerned a form of entertainment some members of the community found

offensive. But it cannot clearly establish Plaintiffs’ asserted right when it otherwise involved

different facts and a different body of First Amendment case law.

Finally, Plaintiffs cite the Supreme Court’s decision in Widmar v. Vincent, 454 U.S, 263

(1981). This too misses the mark. Widmar only addressed content-based exclusions of religious

speech in an “open forum” on campus. /d. at 265. It does not clearly establish a right to conduct a

drag show on campus in a yet-to-be-determined forum — though First Amendment practitioners

rarely miss an opportunity to drop a Widmar quote out of context,

Plaintiffs thus fail to clearly establish a First Amendment right to conduct a “PG-13” drag

show with performers like Myss Myka at a designated or limited public forum on a university

campus in front of children. None of these cases involved drag shows of the type that have become

increasingly controversial, And, except for Conrad, none involved potentially lewd conduct.

5 See Adams by & through Kasper v, Seh. Bd. of St. Johns Cnty., 57 F 4th 791, 808 (11th Cir. 2022) (“[T]he school

is not the workplace.”).

18

Nor are they especially helpful in addressing the limits of reasonable “time, place, and manner”

restrictions on indecent conduct or ways school officials might justify restrictions on protected

forms of expression.”° Critically, even if the lower court cases were directly on point, it would be

“insufficient to create a robust consensus” that would clearly establish the asserted constitutional

right beyond debate. Morrow v. Meachum, 917 F.3d 870, 879-80 (Sth Cir. 2019) (recognition of

a doctrine in six circuits is insufficient).?’

Plaintiffs lament that President Wendler’s email states he will not allow the drag show

“even when the law of the land appears to require it.” See ECF No. 28-1 at 4. But for reasons

explained, that law is not “clearly established” — if it is indeed the law at all. To the extent

President Wendler’s statement conveys a belief that there is a clearly established right and is not

an expression of “confusion typical of many Americans” on what the Constitution requires, his

statement is incorrect and therefore irrelevant. See ECF No. 52 at 8; Messerschmidt y. Millender,

565 U.S. 535, 546 (2012) (the inquiry “generally turns on the objective legal reasonableness of the

action”) (internal marks omitted).

6 See, e.g., Littlefield v, Forney Indep, Sch. Dist., 268 F.3d 275, 286 (Sth Cir, 2001) (assuming without deciding that

a school uniform policy restricted “expressive conduct” but finding “little difficulty” in deeming it constitutional).

27 For the same reasons, two district court cases cannot clearly establish a constitutional right to defeat qualified

immunity, And even if they could, these cases established the law afier President Wendler denied Plaintiffs’

application, See Porter v. Epps, 659 F.3d 440, 445 (5th Cir, 2011) (the defendant’s actions must be objectively

unreasonable “at the time of the violation”). Plaintiffs first cite a district court’s holding that a Tennessee statute

‘criminaliz[es] the performance of ‘adult cabaret entertainment’ in ‘any location where the adult cabaret entertainment

could be viewed by a person who is not an adult’” is unconstitutional, Friends of Georges, Inc. v. Mulroy, No. 2:23-

CV-02163-TLP-TMP, 2023 WL 3790583, at *1 (W.D. Tenn. June 2, 2023), The court mentioned Johnson but

otherwise provided no analysis on why restrictions on drag shows necessarily restrict “expressive conduct.” /d. at *18.

Additionally, Mulroy is distinguishable because it: (1) involved restrictions on “indecent but not obscene” conduct

(i.e., erotic dancing), whereas Plaintiffs’ show was purportedly non-lewd; (2) is not a school campus case; and (3) was

decided on vagueness and overbreadth grounds. /d. at *19. Likewise, 8. Utah Drag Stars v. City of St. George is

distinguishable for similar reasons, No. 4:23-CV-00044-DN-PK, 2023 WL 4053395, at *2 (D. Utah June 16, 2023).

There, the court held that drag shows are “indisputably protected speech” but did not explain why. /d. at *20. Instead,

the court boldly declared contrary arguments “do not merit discussion.” /d.

Ig

For the foregoing reasons, President Wendler did not violate Plaintiffs’ clearly established

rights and is therefore entitled to qualified immunity.?® Accordingly, Plaintiffs’ damages claim

against President Wendler in his individual capacity must be dismissed,

B. Sovereign Immunity Does Not Bar Plaintiffs’ Claims for Prospective Relief

Against President Wendler in His Official Capacity

Qualified immunity is “an immunity from suit rather than a mere defense to liability.”

Pearson y. Callahan, 555 U.S. 223, 237 (2009). Still, the defense is not available “where injunctive

relief is sought instead of or in addition to damages.” Jd at 242. However, the Eleventh

Amendment generally bars federal courts from telling state officials “‘how to conform their

conduct to state law’ — for one can hardly imagine ‘a greater intrusion on state sovereignty.’”

Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 450 (Sth Cir, 2022) (citing

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S, 89, 106 (1984)).

One exception to sovereign immunity is where a lawsuit against a state official in his

official capacity “seeks prospective relief to redress an ongoing violation of federal law.” □□□ at

451 (citing Williams ex rel. JE. vy. Reeves, 954 F.3d 729, 736 (Sth Cir, 2020)), For Ex parte Young

to apply, three criteria must be satisfied: (1) a plaintiff must name individual state officials as

defendants in their official capacities; (2) the plaintiff must allege an ongoing violation of federal

law; and (3) the relief sought must be properly characterized as prospective. Jd.

“!A] complaint must allege that the defendant is violating federal law, not simply that the

defendant has done so,” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (Sth Cir. 2015).

“This requirement is similar but not identical to the Article II] minimum for standing to request an

8 See Radwan v. Manuel, 55 F Ath 101, 122 (2d Cir. 2022) (“In light of the absence of a decision by the Supreme

Court or this Court on the application of the First Amendment... as well as the lack of any consensus among other

courts on this issue, we conclude that the defendants are entitled to qualified immunity.”); Abbott v. Pastides, 900

F.3d 160, 175 (4th Cir, 2018) (“At a minimum, the University defendants were not on clear notice... .”),

20

injunction, which requires ongoing harm or a threat of imminent harm.” /d. at 394 n.5 (citing City

of L.A. v. Lyons, 461 U.S, 95, 105 (1983)); see also Air Evae EMS, Inc. v. Tex. Dep't of Ins. Div.

of Workers’ Comp., 851 F.3d 507, 513-14 (Sth Cir. 2017) (“[T]here is significant overlap between

standing and Ex parte Young’s applicability.”). Accordingly, “when there is no ongoing or

impending violation of federal law, a federal court may not issue declaratory or ‘notice’ relief,

even though that relief would be ‘prospective’ and would not require payments from the state

treasury.” Watkins v. Blinzinger, 789 F.2d 474, 484 (7th Cir. 1986) (Easterbrook, J.). Lastly, in

determining whether /x parte Young applies, a court need only conduct a “straightforward inquiry

into whether the complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Phillips, 24 F.4th at 451 (cleaned up).

The Court need not accept allegations of ongoing harm at face value; the allegations must

be plausible.”? Here, a plausible reading of the facts might suggest Plaintiffs’ only evidence of

harm is a single letter distributed via email. And because Plaintiffs’ other requests have been

approved since President Wendler’s denial — including drag show practice — there are arguably

no “ongoing consequences of past violations of federal rights.” Rep. of Paraguay v. Allen, 134

F.3d 622, 628 (4th Cir. 1998); ECF No. 39-1 at 4. However, the Court at this stage must view the

facts in a light most favorable to Plaintiffs. And President Wendler’s email unequivocally declares

the university “will not” host a drag show because a harmless drag show is “[n]Jot possible.” ECF

29 See, e.g., Allen v, Cooper, 895 F.3d 337, 354 (4th Cir, 2018), aff'd, 140 S. Ct. 994 (2020) (suggesting the possibility

of future infringement “does not plausibly allege the existence of an ongoing violation of federal law”); Cantu Servs.,

Inc. v. Roberie, 535 Fed. Appx. 342, 345 (5th Cir. 2013) (“Despite its facial pleading, the question remains whether

Cantu alleged an ongoing federal law violation.”); DeBauche v, Trani, 191 F.3d 499, 505 (4th Cir, 1999) (Allegations

that the plaintiff “will be excluded from future debates do not, as a matter of law, allege an ongoing violation of

federally-protected rights. Instead, they amount to conjecture regarding discrete future events. Mere conjecture is

insufficient to transform a one-time event into a continuing governmental practice or an ongoing violation.”); Stanley

v. Gallegos, No, CV 11-1108 GBW/JHR, 2018 WL 3801247, at *6 (D.N.M. Aug. 9, 2018) (“The so-called

‘straightforward inquiry’ into whether Plaintiff has alleged an ongoing violation of federal law is in fact quite a thorny

question in practice... .”).

21

No, 28-1 at 2, 4. Thus, Plaintiffs’ allegations are sufficient to satisfy the “ongoing violation” prong

of the Ex parte Young inquiry. See Freedom from Religion Found. v. Abbott, 955 F.3d 417, 424—

25 (Sth Cir, 2020) (holding the plaintiff alleged an “ongoing violation” of federal law where

defendants sent a letter to plaintiffs stating any future applications will be denied), Therefore,

Plaintiffs’ claims for injunctive relief against President Wendler in his official capacity are not

barred by sovereign immunity. Accordingly, the Court DENIES Wendler’s Motion IN PART and

turns to Defendants’ Motion.

C. Plaintiffs Lack Standing Against the Board of Regent Defendants

The judicial power of federal courts is limited to certain “Cases” and “Controversies,”

U.S. Const. art. III, § 2. This case-or-controversy requirement requires a plaintiff to establish he

has standing to sue. Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (Sth Cir. 2013).

To have standing, the party invoking federal jurisdiction must show: “(i) that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused

by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion

LLC y, Ramirez, 141 8, Ct. 2190, 2203 (2021). Courts should assess whether the alleged injury to

the plaintiff has a “close relationship” to harm “traditionally” recognized as providing a basis for

a lawsuit in American courts. /d. at 2204. “[S]tanding is not dispensed in gross; rather, plaintiffs

must demonstrate standing for each claim that they press and for each form of relief that they seek

(for example, injunctive relief and damages).” /d. at 2208. And because vicarious liability is

inapplicable to § 1983 suits, “a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution,” Asheroft v, Iqbal, 556

U.S, 662, 676 (2009).

22

Aside from President Wendler, Plaintiffs also sued Vice President of Student Affairs

Christopher Thomas (“Dr, Thomas”), Chancellor John Sharp, and each member of the Board of

Regents (“Board Defendants”) (collectively, “WT Defendants”). ECF No, 28 at 6-8. Here, parties

quarrel over whether WT Defendants: (1) had any part in President Wendler’s decision; (2) have

any authority — individually or collectively — to overrule that decision; and (3) are imminently

likely to prevent a second drag show. The Court finds that Plaintiffs have standing against

Dr. Thomas and Chancellor Sharp but not against the Board Defendants.

To begin, Plaintiffs allege Dr. Thomas enforced President Wendler’s directive and is likely

to enforce any future directives. See ECF No. 28 at 32; Speech First, Inc. v. Fenves, 979 F.3d 319,

336 (5th Cir, 2020) (“Past enforcement of speech-related policies can assure standing ... .”).

Likewise, President Wendler is “[s]ubject to, and under the general authority of’ Chancellor Sharp.

Tex. A&M UNIV. Sys., SYS. POL’Y 02.05. Chancellor Sharp is responsible for “supervis[ing] the

implementation” of “basic policies,” making recommendations for policies to the Board, and has

been “delegated authority to do all things necessary to fulfill such responsibility.” TEX. A&M

Univ, Sys., Sys. PoL’y 02.02. Chancellor Sharp has a “history of involving himself in university

free speech matters,” ECF No. 45 at 36, but as Plaintiffs note, he did not override or “even

denounce[]” President Wendler’s letter. ECF No, 45 at 35, Thus, Plaintiffs persuasively plead an

apparent disconnect in university policy: under Chancellor Sharp’s leadership, the Texas A&M

University System is a national leader in LGBT advocacy, with the College Station flagship

hosting “Lavender Graduation,” “Coming Out Monologues,” and “Draggieland” events at its

LGBTQ+ Pride Center; yet affiliate WT charts a different course — at least in this case.*?

30 See generally Student Life, LGBTO+ Pride Center, TEX. A&M UNIV.,, https://studentlife.tamu.edu/Igbtq;

draggicland (@draggieland), INSTAGRAM, www. instagram,com/draggieland/ (last viewed on Sept. 15, 2023),

23

“At earlier stages of litigation,” the “manner and degree of evidence required to show

standing is less than at later stages.” Fenves, 979 F.3d at 329. It does not “appear|]| certain” at this

MTD Phase that Plaintiffs “cannot prove any set of facts” in support of their claim that would

entitle them to relief, Home Builders Ass'n, 143 F.3d at 1010. In other words, “it is plausible” that

Chancellor Sharp and Dr. Thomas have some connection to President Wendler’s edict. Haverkamp

v, Linthicum, 6 F 4th 662, 671 (5th Cir. 2021).3' While the Court understands Chancellor Sharp’s

contention that he did not make the decision to cancel the previously scheduled drag show, he does

hold the authority to permit or deny future ones. And because neither side has adequately shown

that Chancellor Sharp and Dr. Thomas have no role in this case, the Court declines to exclude them

at this point. The Court therefore DENIES Defendants’ Motion IN PART.

The analysis changes for the Board Defendants. Plaintiffs rely exclusively on the fact that

the government of the university is “vested” in the Board, which has the power to “make bylaws,

rules, and regulations it deems necessary and proper for the government of the university system

and its institutions, agencies, and services.” TEX. EDUC. CODE ANN. §§ 85.11, 85.21. But “absent

any allegations tying” the Board “to the specific decisions at issue, it cannot be plausibly inferred

that” the Board “played any role in the decisions” Plaintiffs challenge as unconstitutional.

Haverkamp, 6 F 4th at 671.2 Therefore, Plaintiffs lack standing against the Board Defendants.

The Court GRANTS Defendants’ Motion IN PART.

3! Por the same reasons, Chancellor Sharp and Dr. Thomas are not shielded by sovereign immunity from Plaintiffs’

claims for prospective relief, City of Austin v. Paxton, 943 F.3d 993, 1002 (Sth Cir, 2019) (“[A] finding of standing

tends toward a finding that the Young exception applies to the state official(s) in question.”),

2 See also Schwarzer v, Wainwright, No. 6:18-CV-00034, 2023 WL 2950639, at *19 (S.D. Tex. Jan. 17, 2023), report

and recommendation adopted, No, 6:18-CV-00034, 2023 WL 2645538 (8.D. Tex. Mar. 27, 2023) (“Plaintiff does not

allege that any of the Board member defendants participated personally in the decision .. . .”).

24

D. Plaintiffs’ Request for Injunctive Relief Should Be Denied

To be entitled to a preliminary injunction, Plaintiffs must show “a substantial likelihood of

success on the merits,” which is one of the “most significant factors.” Sells v, Livingston, 561 Fed,

Appx. 342, 343 (Sth Cir. 2014); Louisiana vy. Becerra, 20 F.4th at 262 (Sth Cir. 2021).

And Plaintiffs must also demonstrate irreparable harm, which is “[p]erhaps the single most

important prerequisite for the issuance of a preliminary injunction.” 11A C. Wright, A. Miller, &

M. Kane, Federal Practice and Procedure § 2948.1 (3d ed.).

Here, Plaintiffs have not demonstrated they are substantially likely to succeed for the same

reasons that President Wendler is entitled to qualified immunity. See Pearson, 555 U.S. at 236 (“In

some cases, a discussion of why the relevant facts do not violate clearly established law may make

it apparent that in fact the relevant facts do not make out a constitutional violation at all.”), Even if

the denial of the drag show does implicate the First Amendment, Plaintiffs have not demonstrated

that the university’s policy on drag shows is incapable of surviving intermediate or strict scrutiny.

And because Plaintiffs’ irreparable harm argument is predicated on a “clearly established”

First Amendment violation, their argument for that factor must fail as well. In any case, Plaintiffs’

second show is not scheduled until March 2024. It is therefore doubtful that Plaintiffs will suffer

irreparable harm in the coming months while this issue is litigated,

At this stage of litigation, Plaintiffs cannot prevail by invoking the word “expression,” as

if the Free Speech Clause obliterated all logical distinctions separating (1) thought, speech, and

conduct, (2) “time, place, and manner,” and (3) children from sexualized conduct. It does not.

Of course, Plaintiffs may still ultimately prevail on their request for declaratory relief, but that is

a matter for another day, And because these factors are not satisfied, the Court need not reach the

other factors requisite for injunctive relief. See Bluefield, 577 F.3d at 252-53.

25

CONCLUSION

For the foregoing reasons, the Court GRANTS Wendler’s Motion and Defendants’ Motion

IN PART and DENIES Plaintiffs’ Amended Motion.

SO ORDERED.

September gl 2023 Maan

MATTHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE

26