Spectrum WT v. Wendler

Case: 23-10994 Document: 186-1 Page: 1 Date Filed: 08/18/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

August 18, 2025

No. 23-10994 Lyle W. Cayce

____________ Clerk

Spectrum WT; Barrett Bright; Lauren Stovall,

Plaintiffs—Appellants,

versus

Walter Wendler; Dr. Christopher Thomas; John Sharp;

Robert L. Albritton; James R. Brooks; Jay Graham; Tim

Leach; Bill Mahomes; Elaine Mendoza; Michael J.

Plank; Cliff Thomas; Demetrius L. Harrell, Jr.;

Michael A. Hernandez, III,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:23-CV-48

______________________________

Before Dennis, Southwick, and Ho, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Spectrum WT is an LGBT+ student organization at West Texas

A&M University. It was in the last stages of organizing a drag show on

campus when University President Walter Wendler canceled the show. The

plaintiffs, Spectrum WT and two of its student-officers, sought a preliminary

injunction on the grounds their free speech rights were violated. The district

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court denied the injunction, partly based on a holding that the First

Amendment did not apply to the drag show. We REVERSE.

FACTUAL AND PROCEDURAL BACKGROUND

Spectrum WT is a recognized student organization at West Texas

A&M University. Its mission is to “provide a safe space for LGBT+ students

and allies to come together,” “raise awareness of the LGBT+ community,”

and “promote diversity, support, and acceptance on campus and in the

surrounding community.” Plaintiffs Barrett Bright and Lauren Stovall are

undergraduate students at West Texas A&M and officers in Spectrum WT

(together, “the plaintiffs”). 1 Spectrum WT hosts various events in support

of its mission such as Lavender Prom, Queer History Night, and Queer

Movie Night.

One planned event was a charity drag show scheduled for March 31,

2023. The show, titled “A Fool’s Drag Race,” would raise funds for The

Trevor Project, a charitable initiative addressing suicide in the LGBT+

community. The plaintiffs intended to host the event in Legacy Hall, a

university venue space. West Texas A&M has permitted a variety of student

and non-student groups to use Legacy Hall. The purposes have included

song-and-dance competitions, beauty pageants, praise and worship nights,

and political events. Students even used Legacy Hall to host a drag show on

at least one prior occasion in 2019.

Planning for the March 2023 drag show began in November 2022.

The plaintiffs submitted their formal request to reserve Legacy Hall on

January 27, 2023, and began navigating the university’s event approval

process. University staff issued a “[t]entative [c]onfirmation,” and, during

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1

Stovall has withdrawn from the university, but Spectrum WT is still a registered

student organization and Bright is enrolled as a student at the university.

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the first week of March, began helping to put together flyers to promote the

event.

The plaintiffs intended for the show to be “PG-13.” They allege that

West Texas A&M’s administration and staff understood this. To that end,

the plaintiffs instructed performers not to engage in lewd conduct or use

music containing profanity, and they forbade anyone under 18 from attending

unless accompanied by a parent or guardian. The event was to be emceed,

however, by “Myss Myka,” who had performed in a highly sexual drag show

off campus in February. 2

The plaintiffs allege that on March 20, 11 days before the show,

Defendant and Vice President of Student Affairs Dr. Christopher Thomas

informed Barrett Bright that the university was canceling the drag show. Dr.

Thomas explained that President Wendler believed drag shows

discriminated against women.

President Wendler emailed campus students, faculty, and staff later

that day announcing that “West Texas A&M University will not host a drag

show on campus.” The subject of the email was “A Harmless Drag Show?

No Such Thing.” President Wendler explained that support for The Trevor

Project and its work on suicide prevention was “a noble cause.” President

Wendler believed, however, that a drag show does not “preserve a single

thread of human dignity” which comes from being “created in the image of

God.” “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.”

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2

President Wendler asserts, and the plaintiffs do not dispute, that “Myss Myka”

simulated masturbation before the audience and simulated frottage with an audience

member at this show.

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President Wendler made a variety of references, including to the book of

Matthew, Newton’s Third Law of Motion, and the Equal Employment

Opportunity Commission, and made an analogy to blackface performances.

He explained that he does “not support any show, performance or artistic

expression which denigrates others.” Toward the close of his email, he

stated: “Supporting The Trevor Project is a good idea. My recommendation

is to skip the show and send the dough.”

On March 24, 2023, the plaintiffs sued President Wendler and Texas

A&M System officials, including Chancellor John Sharp, Dr. Thomas, and

members of the Board of Regents of the Texas A&M University System. The

plaintiffs moved for a temporary restraining order and preliminary injunction

the same day. They ultimately withdrew the request for a TRO and held the

show off campus. The plaintiffs amended their motion for a preliminary

injunction in order to be allowed to host future shows. The defendants

moved to dismiss. President Wendler argued that drag shows are not

expressive conduct implicating First Amendment constitutional protections

and that he rightly prohibited the show as a restriction on lewd conduct.

The district court granted the defendants’ motions in part on

September 21, 2023. The bulk of its analysis concerned whether President

Wendler was entitled to qualified immunity on the claim for damages. The

district court concluded that he was entitled to qualified immunity because

he had not violated any clearly established right. The court held that it was

not clearly established that all drag shows are inherently expressive and

therefore implicate the First Amendment, and President Wendler’s

cancellation of the drag show was not objectively unreasonable given the

show’s “potential lewdness.” The district court appeared to deem Legacy

Hall, the venue where the drag show would have taken place, a limited public

forum.

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The district court concluded that the plaintiffs had standing to bring

claims against Chancellor Sharp and Vice President Thomas but not against

the Board defendants. 3 The district court also concluded that sovereign

immunity did not bar the plaintiffs’ claims for injunctive relief against

President Wendler, but that their request for a preliminary injunction should

be denied. The plaintiffs could not show a likelihood of success on the merits

“for the same reasons that President Wendler [was] entitled to qualified

immunity.” The district court also rejected the plaintiffs’ irreparable harm

argument.

The plaintiffs timely appealed the denial of the preliminary injunction

under 28 U.S.C. § 1292(a)(1). Although they sought a partial final judgment

to appeal the denial of the damages claim, the district court denied it. Only

the denial of the preliminary injunction is at issue in this appeal.

DISCUSSION

This court ordinarily reviews a district court’s grant or denial of a

preliminary injunction for an abuse of discretion. Anibowei v. Morgan, 70

F.4th 898, 902 (5th Cir. 2023). “Whether free speech rights have been

infringed presents a mixed question of law and fact reviewed de novo, and

when a preliminary injunction turns on a mixed question of law and fact, it,

too, is reviewed de novo.” Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.

2009).

I. Preliminary injunction against President Wendler

“The purpose of a preliminary injunction is merely to preserve the

relative positions of the parties until a trial on the merits can be held.”

University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Because a

_____________________

3

The plaintiffs do not contest their lack of standing against the Board defendants.

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preliminary injunction is an “extraordinary and drastic remedy,” a court

should not grant one “unless the movant clearly carries the burden of

persuasion.” Anibowei, 70 F.4th at 902 (quoting Canal Auth. of State of Fla.

v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). The movant must show:

(1) a substantial likelihood that plaintiff will prevail on the

merits, (2) a substantial threat that plaintiff will suffer

irreparable injury if the injunction is not granted, (3) that the

threatened injury to plaintiff outweighs the threatened harm

the injunction may do to defendant, and (4) that granting the

preliminary injunction will not disserve the public interest.

Id. (quoting Canal Authority, 489 F.2d at 572).

We now examine these factors.

A. Likelihood of success on the merits

To demonstrate an entitlement to a preliminary injunction here, the

plaintiffs must first show that the intended drag show implicates the First

Amendment. See Voting for America, Inc. v. Steen, 732 F.3d 382, 388 (5th Cir.

2013). If that is shown, we conduct a forum analysis to determine the

appropriate level of scrutiny given to the denial of their drag show. See

Freedom from Religion Found. v. Abbott, 955 F.3d 417, 426 (5th Cir. 2020).

The last step is to determine whether the denial of the opportunity to put on

a drag show survives the applicable scrutiny. See Christian Legal Soc’y

Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez (CLS

Hastings), 561 U.S. 661, 684–85 (2010). “A plaintiff is not required to prove

its entitlement to summary judgment in order to establish ‘a substantial

likelihood of success on the merits’ for preliminary injunction purposes.”

Byrum, 566 F.3d at 446.

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1. Applicability of the First Amendment to a drag show

The First Amendment prohibits the government from “abridging the

freedom of speech.” U.S. CONST. amend. I. “The First Amendment

literally forbids the abridgment only of ‘speech,’ but we have long recognized

that its protection does not end at the spoken or written word.” Texas v.

Johnson, 491 U.S. 397, 404 (1989). Free speech caselaw balances two

considerations: a rejection of “the view that an apparently limitless variety of

conduct can be labeled ‘speech’ whenever the person engaging in the

conduct intends thereby to express an idea,” and an acknowledgement that

conduct is sometimes “sufficiently imbued with elements of communication

to fall within the scope of the First and Fourteenth Amendments.” Id. (first

quoting United States v. O’Brien, 391 U.S. 367, 376 (1968); and then quoting

Spence v. Washington, 418 U.S. 405, 409 (1974) (per curiam)). The party

invoking the First Amendment’s protection has the burden of proving it

applies. Voting for America, 732 F.3d at 388.

The parties disagree on the legal standard for determining when

conduct is sufficiently expressive to implicate the First Amendment.

President Wendler asserts the First Amendment is not implicated because

the plaintiffs have failed to identify the “particular views” expressed through

the drag show. President Wendler also argues that drag shows require

explanation before any meaning may be discerned, and this need for

explanation demonstrates “that drag shows are not inherently expressive

conduct.” The plaintiffs take a more expansive view of expressive conduct.

They reject the requirement of a “particularized message” and state that

conduct implicates the First Amendment “so long as there is an intent to

convey a message and viewers would understand the conduct as expressive.”

We divide this section of our analysis into two parts. The first will

evaluate President Wendler’s argument that a particular view must be

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discernible. The second will determine whether the proposed drag show

meets whatever standard we determine applies to conduct.

a. The need for a discernible message

We start with a Supreme Court opinion stating that “a narrow,

succinctly articulable message is not a condition of constitutional protection”

for expressive conduct. Hurley v. Irish-American Gay, Lesbian & Bisexual Grp.

of Boston, 515 U.S. 557, 569 (1995). Hurley dealt with private parade

organizers who were required to admit marchers that they wished to exclude.

Id. at 563. The parade organizers argued the forced inclusion violated their

First Amendment speech rights, id. at 566, but the Massachusetts trial court

concluded it was “impossible to discern any specific expressive purpose

entitling the Parade to protection under the First Amendment.” Id. at 563.

The Supreme Judicial Court of Massachusetts affirmed. Id. at 563–64. A

unanimous Supreme Court rejected this view. Id. at 566. If a specific

message were necessary for free speech protection, the First Amendment

“would never reach the unquestionably shielded painting of Jackson Pollock,

music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Id. at

569. Or, even, opaque judicial opinions.

The Hurley opinion involved a group’s mix of messages, not a group

without a message. The Court held that “a private speaker does not forfeit

constitutional protection simply by combining multifarious voices, or by

failing to edit their themes to isolate an exact message as the exclusive subject

matter of the speech.” Id. at 569–70.

With that as a foundation, we examine three of the precedents on

which President Wendler relies to support his argument that the plaintiffs’

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drag show does not implicate the First Amendment because it does not

communicate a particular message or view. 4

The first is Spence, 418 U.S. 405. In that case, Seattle police officers

arrested Harold Spence after he flew an American flag upside-down with a

peace symbol fashioned on it in black tape. Id. at 405–06. At his trial, Spence

testified the display was in protest against American military action in

Cambodia and the killings at Kent State University, both of which had

occurred shortly before his display of the altered flag. Id. at 408. The

Supreme Court of Washington affirmed Spence’s resulting conviction under

a state statute forbidding the display of a United States flag with

superimposed symbols. Id. at 405–06. The Supreme Court of the United

States reversed and held that the statute violated Spence’s free speech rights.

Id. at 406.

Acknowledging that only some conduct intended as expressive could

be deemed speech for First Amendment purposes, the Supreme Court

framed the controlling question as “whether [Spence’s] activity was

sufficiently imbued with elements of communication to fall within the scope

of the First and Fourteenth Amendments.” Id. at 409. The Court explained

that “the nature of [Spence’s] activity, combined with the factual context

and environment in which it was undertaken, lead to the conclusion that he

engaged in a form of protected expression.” Id. at 409–10.

The communicative nature of flags was clear. Id. at 410. The

temporal context of the flag’s display also gave meaning to the symbol. Id.

Against the backdrop of Cambodia and Kent State, the display was “a

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4

On whether the drag show is expressive, President Wendler cites United States v.

O’Brien, 391 U.S. 367 (1968). He does not argue that the ban passes the O’Brien test for

incidentally regulating expressive conduct, so we do not address that argument.

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pointed expression of anguish by appellant about the then-current domestic

and foreign affairs of his government.” Id. “A flag bearing a peace symbol

and displayed upside down by a student today might be interpreted as nothing

more than bizarre behavior, but it would have been difficult for the great

majority of citizens to miss the drift of appellant’s point at the time that he

made it.” Id. The Supreme Court then stated the phrase at the heart of

President Wendler’s stance: “An intent to convey a particularized message

was present, and in the surrounding circumstances the likelihood was great

that the message would be understood by those who viewed it.” Id. at 410–

11. We will refer to this as the “Spence test.”

The next relevant precedent is Rumsfeld v. Forum for Academic &

Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006). FAIR was an

association of law schools and law faculties that opposed the military’s then-

existing policy on homosexuality. Id. at 52. FAIR sought to restrict military

recruiters’ access to their law schools by forcing those recruiters to conduct

interviews on the undergraduate campus. Id. at 53. In response, Congress

prohibited federal funding to universities that denied military recruiters equal

access to their campuses and students. Id. at 54.

The Supreme Court explained that it had “extended First

Amendment protection only to conduct that is inherently expressive.” Id. at

66. The conduct at issue — the law schools’ forcing military recruiters to

conduct interviews on the undergraduate campuses — was not inherently

expressive. Id. These restrictions were expressive “only because the law

schools accompanied their conduct with speech explaining it.” Id. The

Court concluded that an observer would have no way of knowing if military

recruiters were interviewing away from the law school because the law school

disapproved of military policy. Id. An observer could just as easily have

concluded the law school’s interview rooms were full, or that the military

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recruiters had themselves decided to hold interviews away from the law

school. Id. There is a limit on deeming conduct expressive:

The expressive component of a law school’s actions is

not created by the conduct itself but by the speech that

accompanies it. 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 under

O’Brien. If combining speech and conduct were enough to

create expressive conduct, a regulated party could always

transform conduct into “speech” simply by talking about it.

Id. The Supreme Court did not mention the need for a speaker to identify a

particularized message that a listener would understand. See id. The

Supreme Court recently clarified its reasoning, stating that a school is “not

speaking when they host interviews.” Moody v. NetChoice, LLC, 603 U.S.

707, 731 (2024) (quoting FAIR, 547 U.S. at 64). Stated another way, the

“law school’s recruiting services lack[ed] the expressive quality of a parade.”

Id. (quoting FAIR, 547 U.S. at 64).

Finally, we consider this court’s opinion in Voting for America, 732

F.3d 382. We rejected a First Amendment challenge to a Texas voting law

that regulated volunteer deputy registrars. Id. at 385–86. Voting for America

claimed that the law’s “Non-Resident and County [p]rovisions,” which

required volunteers to be Texas residents and only register voters for

counties in which the volunteers had been appointed, implicated expressive

conduct. Id. at 389.

We disagreed. Id. at 391. “To determine whether particular conduct

possesses sufficient ‘communicative elements’ to be embraced by the First

Amendment, courts look to whether the conduct shows an ‘intent to convey

a particular message’ and whether ‘the likelihood was great that the message

would be understood by those who viewed it.’” Id. at 388 (quoting Johnson,

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491 U.S. at 404). The court held the Non-Resident and County provisions

regulated non-expressive activity. Id. at 391. The activity in question

amounted simply to “the receipt and delivery of completed voter-registration

applications,” distinct from advocacy to register to vote. Id.

Other Supreme Court opinions also have held that conduct within

certain expressive settings and media is protected. For example, “live

drama” implicates the First Amendment, given that “theater usually is the

acting out — or singing out — of the written word, and frequently mixes

speech with live action or conduct.” Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 557–58 (1975). Films are no different. Joseph Burstyn, Inc. v.

Wilson, 343 U.S. 495, 502–03 (1952). Violent video games also fall under

First Amendment doctrine. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790

(2011). Even “nude dancing is not without its First Amendment protections

from official regulation.” Doe I v. Landry, 909 F.3d 99, 106–07 (5th Cir.

2018) (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981)).

We summarize these precedents as requiring that the conduct must

convey one or more messages to make the First Amendment relevant. Spence

and Voting for America considered whether conduct communicated a specific

message likely to be understood by the recipient. See 418 U.S. at 410–11; 732

F.3d at 388. With a different emphasis, the Supreme Court in Hurley held

that “a narrow, succinctly articulable message is not a condition of

constitutional protection.” 515 U.S. at 569. Reconciling the precedents, we

see the main difference as being the clarity of the message. To use the

Jackson Pollack example from Hurley, it must be evident that conveying some

message, even if nearly opaque or perhaps smeared, was intended.

b. Expressiveness of the plaintiffs’ drag show

Having set out the relevant principles, we now examine the plaintiffs’

intended drag show. It would have included costumed performers with stage

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names, occurred on a stage, and mixed the spoken and sung word with the

show’s physical components while songs played in the background. Cf.

Southeastern Promotions, 420 U.S. at 547, 557 (describing a production of Hair

as protected expression).

The district court suggested that conduct that does not communicate

a specific message must amount to a “work[] of fine art” to gain First

Amendment protection. The concern for fine art largely stems from Hurley’s

reference to the works of Picasso, Schöenberg, and Carroll; this court

previously stated that “Hurley refers solely to great works of art.” Kleinman

v. City of San Marcos, 597 F.3d 323, 326 (5th Cir. 2010) (discussing Hurley,

515 U.S. at 569). We have not held, however, that conduct that does not

communicate a specific message is entitled to protection only when it

amounts to “fine art,” an impossibly subjective standard. Instead, “Hurley’s

reference to works of fine art did not sweep so broadly as to require a

judicially crafted hierarchy of artistic expression.” Id. at 327. In Kleinman,

we were discussing an ordinance that required the removal of a junked car,

smashed, filled with dirt, covered with vegetation, and used as a planter and

as an advertisement for a business. Id. at 324–25. Though the car was

colorfully painted and had “make love not war” written on it, the real

message was to advertise the business. Id. at 324, 327. That is a reasonable

understanding of Hurley, that it was not protecting all physical violations of

regulations and ordinances that are colorfully painted.

We find no support in this court’s caselaw for the proposition that

nonspeech conduct must be a work of fine art to receive First Amendment

protection if it does not communicate a particularized message. Any such

suggestion would be at odds with the guidance provided by the Supreme

Court. For example, the Court stated that “[r]eading Dante is

unquestionably more cultured and intellectually edifying than playing Mortal

Kombat. But these cultural and intellectual differences are not constitutional

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ones.” Ent. Merchs., 564 U.S. at 796 n.4. Similarly, the Court stated that

“[m]ost of what we say to one another lacks ‘religious, political, scientific,

educational, journalistic, historical, or artistic value’ (let alone serious value),

but it is still sheltered from government regulation.” United States v. Stevens,

559 U.S. 460, 479 (2010).

In the present dispute, it is evident that a message in support of

LGBT+ rights was intended, which is a far clearer message than some of the

examples of art identified in Hurley as protected by the First Amendment.

We also examine the applicability of the analysis in Spence. Whether

conduct is communicative is explained in part by societal and temporal

context. Spence, 418 U.S. at 410. A drag show can communicate a message

of solidarity and support for the LGBT+ community. Drag shows — with

performers dancing and speaking to music on stage in clothing associated

with the opposite gender — mark a deliberate and theatrical subversion of

gender-based expectations and signify support for those who feel burdened

by such expectations. This group would include the LGBT+ community.

President Wendler’s best response is that not all instances of dressing

in clothing of the opposite sex communicates a message of support for the

LGBT+ community. He gives the example of male Shakesperean actors

portraying female roles and the 1943 movie “This Is the Army,” in which

male actors compare the strangeness of being drafted out of normal life into

the army to the experience of being drafted unexpectedly into a female

chorus. President Wendler’s brief also refers to a sister circuit’s opinion in

which members of a fraternity dressed as women as part of their “Ugly

Woman Contest.” IOTA XI Chapter of Sigma Chi Fraternity v. George Mason

Univ., 993 F.2d 386 (4th Cir. 1993).

Certainly, not all instances of displaying oneself in the attire associated

with the opposite sex communicate support for the LGBT+ community.

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This does not mean, though, that drag shows as described here fail to

communicate such a message of support. Some do. The question is whether

the plaintiffs’ intended drag show would have communicated a message. We

consider context dispositive. The viewers of the drag show would have been

ticketed audience members attending a performance sponsored by LGBT+

student organizations and designed to raise funds for an LGBT+ suicide-

prevention charity. Against this backdrop, the message sent by parading on

a theater stage in the attire of the opposite sex would have been unmistakable.

“An intent to convey a particularized message was present, and in the

surrounding circumstances the likelihood was great that the message would be

understood by those who viewed it.” Spence, 418 U.S. at 410–11 (emphases

added).

All we are determining in this step of the analysis is whether a

discernible message would have been conveyed. We conclude that this drag

show would convey such a message. That is enough to implicate the First

Amendment. We next consider whether President Wendler violated the

First Amendment when he banned the show.

2. Banning drag show as violation of the First Amendment

We must determine the correct standards to analyze President

Wendler’s denial of Legacy Hall to the plaintiffs’ drag show. The parties

agree that forum analysis applies, as we conclude as well. See Good News Club

v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). The parties disagree as to the

type of forum that is involved.

“The standards that [courts] apply to determine whether a State has

unconstitutionally excluded a private speaker from use of a public forum

depend on the nature of the forum.” Id. “There are two broad categories of

forums: (1) traditional and designated public forums and (2) limited public

forums and nonpublic forums.” Freedom From Religion Foundation, 955 F.3d

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at 426. “Traditional public forums are places such as sidewalks, streets, and

parks that have traditionally been devoted to assembly or debate.” Id.

Designated public forums are opened by the government to the same broad

use as traditional public forums. Id. Limited public forums are opened by the

government for specific groups of speakers or types of expression. Id.

Nonpublic forums have not been opened for public communication. Id.

To determine whether a forum is a designated public forum or limited

public forum, this court ordinarily looks at two factors: “(1) the

government’s intent with respect to the forum, and (2) ‘the nature of the

forum and its compatibility with the speech at issue.’” Chiu v. Plano Indep.

Sch. Dist., 260 F.3d 330, 346 (5th Cir. 2001) (alterations adopted) (quoting

Estiverne v. La. State Bar Ass’n, 863 F.2d 371, 378 (5th Cir. 1989)). “Court[s]

look[] to whether the government was motivated by ‘an affirmative desire’

or ‘express policy’ of allowing public discourse on the property in question.”

Hays Cnty. Guardian v. Supple, 969 F.2d 111, 117 (5th Cir. 1992) (citations

omitted) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788, 802, 805 (1985)).

President Wendler asserts that “Legacy Hall is not open to the general

public.” He also argues that our forum analysis is controlled by Supreme

Court caselaw dealing with universities placing restrictions on the use of

school resources. See CLS Hastings, 561 U.S. 661.

To support his argument that Legacy Hall is not open to the public,

President Wendler relies on the university’s “Facility Use Request

Procedure.” The cited policy requires those seeking access to the facility to

request use of campus spaces and states that the school “reserves the right

to cancel an event and immediately remove access to campus if an event

violates the policies and regulations of the Texas A&M University System,

the rules and procedures of WTAMU, or if an event is deemed to be unsafe.”

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The policy details to whom request forms should be routed, when and how

alcohol is to be served, specific areas where campus visitors are not

permitted, and parking rules. None of these policies limit access of the

facilities to students or to only certain parts of the public. This policy

contains no limits on public expression of particular kinds or by particular

groups and thus does not support the assertion that Legacy Hall is a limited

public forum. Legacy Hall, based on the policy and practice of the university

as the record exists now, would more comfortably fit among designated

public forums than limited public forums.

Based on the current record, Legacy Hall is open both to students and

non-students for a wide variety of events. No party offers evidence that a

request for use has been denied to a student or an outside group. Past uses

include a local church group’s “Community Night of Worship and Prayer,”

a congressional candidate forum, a local high school’s “Casino Night”

dance, a local non-profit’s benefit gala, Randall County’s livestock show, and

a religious retreat center’s event dinner. These past uses, or practices, do

not support that West Texas A&M University has limited Legacy Hall to

“public expression of particular kinds or by particular groups.” Freedom

From Religion Foundation, 955 F.3d at 426.

A much-discussed precedent in the briefing shows the importance of

classifying the forum. It concerns a law school’s conditioning the grant of

registered student organization (“RSO”) status on adherence to a policy of

accepting anyone as a member. CLS Hastings, 561 U.S. at 670–71. RSO

status conferred benefits that included access to financial subsidies for events

and use of the law school’s facilities for meetings. Id. at 699–70. The

Christian Legal Society, or CLS, argued that Hastings violated its First

Amendment rights to free speech and expressive association by conditioning

RSO status and its attendant benefits on CLS accepting all who sought

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membership. Id. at 678–79. In rejecting that argument, the Supreme Court

applied the limited public forum analysis. Id. at 679–83, 698.

There is no issue of expressive association here as was central in CLS

Hastings. The group wishing to use Legacy Hall was not being forced to

change its membership in order to do so. Instead, the group was told to

abandon the way in which it wished to deliver its message, i.e., the message

of support of the LGBT+ community through the delivery mechanism of a

drag show. On the record so far, President Wendler’s objections were not to

the message but to the way it would be delivered. That objection

distinguishes CLS Hastings. Instead of the significant interference with the

right of expressive association that the Supreme Court permitted there, the

university here was interfering with the expressive activity itself, the speech.

The interference was allowed in CLS Hastings for three principal

reasons, all based on the conclusion that the school maintained a limited

forum, where student groups were the sole users of the facilities. Id. at 680–

83. Two reasons are relevant here. “First, the same considerations that have

led us to apply a less restrictive level of scrutiny to speech in limited public

forums as compared to other environments apply with equal force to

expressive association occurring in limited public forums.” Id. at 680

(citation omitted). “Second, and closely related, the strict scrutiny we have

applied in some settings to laws that burden expressive association would, in

practical effect, invalidate a defining characteristic of limited public

forums — the State may ‘reserv[e] [them] for certain groups.’” Id. at 681

(alterations in original) (quoting Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819, 829 (1995)). Explaining that rationale further, the Court

stated that “ordinarily, and without controversy, [schools] limit official

student-group recognition to organizations comprising only students — even

if those groups wish to associate with nonstudents.” Id.

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Unlike in CLS Hastings, the evidence here is that West Texas A&M

University’s policy did not limit use of the auditorium to students. Legacy

Hall was a designated public forum. “Although a state is not required to

indefinitely retain the open character of the facility, as long as it does so it is

bound by the same standards as apply in a traditional public forum.” Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).

“Government property . . . does not automatically cease to be a designated

public forum because the government restricts some speech on the

property.” Hays Cnty. Guardian, 969 F.2d at 117. “Otherwise, the

restriction of speech on government property would be self-justifying.” Id.

“The restriction would disprove any intent to create a designated public

forum, and the failure to create a public forum would justify the restriction of

speech.” Id. “The Supreme Court has not adopted such circular

reasoning.” Id. President Wendler’s new anti-drag-show policy did not

somehow transform Legacy Hall into a limited public forum. “[T]he

government’s policy is indicated by its consistent practice, not each

exceptional regulation that departs from the consistent practice.” Id. at 117–

18.

A content-based restriction on First Amendment-protected activity in

a designated public forum is subject to strict scrutiny and must be narrowly

tailored to serve a compelling state interest. Freedom From Religion

Foundation, 955 F.3d at 426. The restriction here describes impermissible

expression “not in terms of time, place, and manner, but in terms of”

content, i.e., a drag show. Police Dep’t. of Chicago v. Mosley, 408 U.S. 92, 99

(1972). The ban abandons “the neutrality of time, place, and circumstance”

and becomes “a concern about content.” Id. The university may have a

legitimate interest in prohibiting some expression to protect the institutional

and educational mission, but a justification for a selective exclusion from a

designated public forum must be carefully scrutinized. Id. at 98–99. Because

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theatrical performances plainly involve expressive conduct within the

protection of the First Amendment, and because we find the plaintiffs’ drag

show is protected expression, discrimination among such shows must pass

strict scrutiny. “The University’s institutional mission . . . does not exempt

its actions from constitutional scrutiny.” Widmar v. Vincent, 454 U.S. 263,

268 (1981).

President Wendler did not argue, either before the district court or on

appeal, that restricting the intended drag show would survive strict scrutiny.

Based on the record before us, the district court erred in concluding that the

plaintiffs were not substantially likely to succeed on the merits of their First

Amendment claim. 5

B. Irreparable injury

It is not enough for the plaintiffs to show a likelihood of success on

their First Amendment challenge. To establish an entitlement to a

preliminary injunction, they must also establish it is likely, not merely

possible, they will suffer irreparable harm absent preliminary relief. Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). President Wendler

argues the plaintiffs fail to satisfy this irreparable harm requirement because

it is speculative to conclude that future requests to hold drag shows would

not be decided on their particular facts. At the time of briefing, the planned

March 2024 drag show was tentatively scheduled to go forward. We were

informed by letter that President Wendler canceled that show, too. President

Wendler stated that the application “is denied for the reasons given

previously and for the reasons further explained in court filings and those

_____________________

5

Because we hold that the plaintiffs are substantially likely to succeed on the merits

due to other reasons, we do not reach their argument that the anti-drag-show policy is a

prior restraint.

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provided by the courts themselves. Moreover, it is denied because S.B. 12

went into effect as a Texas law in September 2023, as well as a number of

other compelling considerations.” At oral argument, counsel for President

Wendler represented that no drag show is permissible at West Texas A&M

University.

“The loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.” Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (quoting Elrod v. Burns, 427 U.S.

347, 373 (1976) (plurality opinion)). In light of the March 2024 show’s

cancellation and the representation at oral argument that no drag shows will

be permitted, we conclude the plaintiffs have shown a substantial threat of

irreparable harm to their First Amendment rights absent an injunction

against President Wendler. 6

C. The balance of equities and the public interest

Finally, the plaintiffs must show that the threatened injury outweighs

the threatened harm the injunction may do to the university defendants, and

_____________________

6

For similar reasons, we reject President Wendler’s argument that the district

court erred in concluding that the plaintiffs have standing against him and that sovereign

immunity does not bar their claims. President Wendler asserts the plaintiffs cannot

overcome sovereign immunity through the Ex parte Young doctrine. Ex parte Young

requires that “(1) [the] 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.” Planned Parenthood Gulf

Coast, Inc. v. Phillips, 24 F.4th 442, 451 (5th Cir. 2022) (alterations adopted) (quotation

marks omitted) (quoting Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471

(5th Cir. 2020) (en banc)); see also Ex parte Young, 209 U.S. 123 (1908). President Wendler

argues the plaintiffs cannot meet the second and third requirements. His arguments here

fail because they mirror his unsuccessful arguments on the merits. He asserts the plaintiffs

have not pled a First Amendment violation, and there is no guarantee future events will not

be decided on their particular facts. As discussed above, the first contention fails legally,

and President Wendler clarified at oral argument that no drag show will be permitted on

campus.

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that granting the preliminary injunction will not disserve the public interest.

When the government is a party, the third and fourth preliminary injunction

factors merge. See Texas v. United States, 809 F.3d 134, 187 & n.204 (5th Cir.

2015); Nken v. Holder, 556 U.S. 418, 435 (2009) (merging the factors in the

context of stay of removal proceedings). As the plaintiffs state, “injunctions

protecting First Amendment freedoms are always in the public interest.”

Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)

(quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006)).

Because an injunction would protect the plaintiffs’ First Amendment rights,

they have satisfied these final factors. President Wendler asserts that great

harm will befall West Texas A&M if a “blanket injunction that deprives

University administrators of their prerogative to professionally assess

particular facilities requests” is issued. He argues this is true because the

university “do[es] not know the particularities of any future events

appellants might wish to hold” and the university should “be given the first

opportunity to review these details.” President Wendler and the university

will not lose that ability. The university may still place reasonable time, place,

and manner restrictions on the use of the facilities. Any planned event is still

subject to the university’s policies and procedures to the extent they are time,

place, and manner restrictions rather than content-based restrictions. The

plaintiffs are entitled to an injunction protecting their rights, and the district

court erred in concluding otherwise.

II. Preliminary injunction against Chancellor Sharp and Dr. Thomas

Last, we consider the claims against Chancellor Sharp and Dr.

Thomas. In the district court, these defendants argued the plaintiffs lacked

standing against them. The district court concluded the plaintiffs had

standing against these two defendants but denied the plaintiffs an injunction

against them. Now, Chancellor Sharp and Dr. Thomas argue the district

court should be affirmed. Rather than assert the district court erred by failing

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to dismiss the plaintiffs’ claims against them for lack of jurisdiction,

Chancellor Sharp and Dr. Thomas argue the plaintiffs have not demonstrated

a likelihood of success on the merits of their claims such that this court should

affirm the denial of the preliminary injunction. The plaintiffs, in contrast,

argue this court should reverse the district court’s denial of their preliminary

injunction as to Chancellor Sharp and Dr. Thomas.

We first consider jurisdiction and sovereign immunity. We review

issues of standing and sovereign immunity de novo. Texas All. for Retired

Americans v. Scott, 28 F.4th 669, 671 (5th Cir. 2022). Although Chancellor

Sharp and Dr. Thomas do not squarely argue the plaintiffs lack jurisdiction

at this preliminary stage of the litigation, we must assure ourselves of

jurisdiction. See Elldakli v. Garland, 64 F.4th 666, 669 (5th Cir. 2023).

A recent precedent guides our jurisdictional analysis. Jackson v.

Wright, 82 F.4th 362, 367 (5th Cir. 2023). There, administrators at a state

university removed a professor from his role with a scholarly journal out of

concern that the journal was espousing racist ideas. Id. at 365–66. Included

as defendants were the university’s board members who were not involved

in the decision to remove him but served as the governing body for the

university. Id. This court held the professor had standing against the board

members and his First Amendment claim was not barred by sovereign

immunity. Id. at 366–67. We explained that for the Ex parte Young exception

to sovereign immunity to apply, “a plaintiff must sue the right defendants

and ask for the right remedy.” Id. at 367.

As to suing the right defendants, “the officers who are sued must have

‘some connection with the enforcement’ of the challenged law or policy.”

Id. (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). Several “guideposts

have emerged” in determining whether a sufficient enforcement connection

exists. Texas All. for Retired Americans, 28 F.4th at 672.

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First, “[a]ll that is required is a mere scintilla of enforcement by the

relevant state official with respect to the challenged law.” Jackson, 82 F.4th

at 367 (quotation marks omitted) (quoting City of Austin v. Paxton, 943 F.3d

993, 1002 (5th Cir. 2019)). In Jackson, this guidepost indicated Ex parte

Young’s applicability because of the board’s ultimate governance authority at

the university. Id. This guidepost likewise favors the plaintiffs here. Sharp

is the chancellor for the Texas A&M University System, and Dr. Thomas

manages the Division of Student Affairs. We conclude their roles amount to

sufficient governance authority in relation to the challenged drag show ban.

Second, the official “must have more than ‘the general duty to see

that the laws of the state are implemented.’” Id. (quoting City of Austin, 943

F.3d at 999–1000). In Jackson, this guidepost also indicated Ex parte Young

applied because the board defendants had authority over the university

officials who allegedly violated the professor’s First Amendment rights,

including the authority to countermand their decisions. Id. at 368. We

conclude this guidepost also indicates Ex parte Young applies here. Dr.

Thomas manages the Division of Student Affairs, which is “responsible for

oversight and management of all matters related to student issues and affairs,

activities, housing, and student rights and responsibilities on campus.”

While Sharp may not have the authority to countermand specific decisions

by university presidents, he has “direct authority and responsibility for”

university presidents. Tex. A&M University System, System

Policy 2.02, § 1.12, https://policies.tamus.edu/02-02.pdf (May 20, 2021).

As it relates to the drag show ban, neither Chancellor Sharp nor Dr. Thomas

has merely the general duty to see that the laws of the state are implemented.

The plaintiffs have thus “sue[d] the right defendants.” Jackson, 82 F.4th at

367.

The plaintiffs also “ask for the right remedy,” id., because they seek

prospective relief and have “allege[d] an ongoing violation of federal law.”

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Id. at 368 (alteration in original) (quoting Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., 535 U.S. 635, 645 (2002)). The plaintiffs may therefore

access Ex Parte Young to overcome the assertion of sovereign immunity. By

extension, the plaintiffs also have standing at least against Dr. Thomas.

While the two are not coterminous, we have acknowledged the “significant

overlap” between Article III standing analysis and Ex parte Young analysis.

Air Evac EMS, Inc. v. Tex. Dep’t of Ins. Div. of Workers’ Comp., 851 F.3d 507,

520 (5th Cir. 2017). Supporting this conclusion is our prior recognition that

“[a]t earlier stages of litigation, . . . the manner and degree of evidence

required to show standing is less than at later stages.” Speech First, Inc. v.

Fenves, 979 F.3d 319, 329 (5th Cir. 2020).

Although the plaintiffs have standing against Dr. Thomas, they do not

have standing against Chancellor Sharp. We earlier discussed the significant

overlap between Article III standing and Ex parte Young. That overlap is not

total, however, and the relief requested against Chancellor Sharp illustrates

one difference. The relief requested against Chancellor Sharp — an

injunction preventing him from enforcing President Wendler’s drag show

ban — is “the right remedy” for purposes of Ex parte Young, as we explained

above. Jackson, 82 F.4th at 368. The problem is that this relief would do

nothing to redress the plaintiffs’ injury. The plaintiffs do not fault Chancellor

Sharp for helping enforce President Wendler’s drag show ban, but instead for

not preventing others from enforcing it. 7 Enjoining Chancellor Sharp from

helping enforce the drag show ban would in no way redress the plaintiffs’

injury. What plaintiffs would need — and what they specifically did not

_____________________

7

The plaintiffs suggest that Chancellor Sharp has intervened in past First

Amendment controversies and might well help enforce the drag show ban in the future.

That suggestion is not supported in the present record, as Chancellor Sharp never acted to

enforce the drag show ban. The plaintiffs’ suggestion that he will is speculative and cannot

provide a basis for redressability.

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request, as they emphasize in their reply brief — is an injunction compelling

Chancellor Sharp to affirmatively prevent his subordinates from enforcing

President Wendler’s drag show ban. 8

The plaintiffs have not demonstrated standing for the relief they

requested against Chancellor Sharp. The district court thus did not err in

denying a preliminary injunction against Chancellor Sharp. Indeed, the

district court should have dismissed the claim against Chancellor Sharp for

want of jurisdiction. See, e.g., Barber v. Bryant, 860 F.3d 345, 352, 358 (5th

Cir. 2017) (holding that the plaintiffs failed to make a clear showing of

standing at the preliminary-injunction stage and rendering a judgment of

dismissal for want of jurisdiction). True, Chancellor Sharp did not ask for

dismissal in his brief, but the import of his argument justifies dismissal, and

we have a duty to resolve questions of jurisdiction sua sponte if necessary. See,

e.g., Henderson v. Stalder, 287 F.3d 374, 379 n.5 (5th Cir. 2002). Dismissal is

proper in this instance.

We will next consider Dr. Thomas’s remaining arguments. He insists

the plaintiffs have not shown irreparable harm because any First Amendment

injury is speculative and not fairly traceable to him. Those arguments sound

in standing, and we have already concluded that the plaintiffs have standing

against him.

_____________________

8

Such an injunction might run afoul of Ex parte Young’s limits on affirmative relief.

See Green Valley, 969 F.3d at 472 n.21 (acknowledging these limits but noting that their

precise scope is unclear); Richardson v. Texas Sec’y of State, 978 F.3d 220, 241–42 (5th Cir.

2020) (recognizing Ex parte Young bars affirmative relief at least insofar as the relief would

“control [an officer] in the exercise of his discretion” (alterations in original) (quoting Ex

parte Young, 209 U.S. at 158)). The precise bounds of those limits are unclear, and we see

no occasion here to delineate them because the plaintiffs did not request such an injunction.

See Center for Biological Diversity v. EPA, 937 F.3d 533, 542 (5th Cir. 2019) (“Arguments in

favor of standing, like all arguments in favor of jurisdiction, can be forfeited or waived.”).

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Next, Dr. Thomas argues that he cannot be held vicariously liable for

President Wendler’s actions, citing Section 1983 and Bivens cases to that

effect. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This argument

fails because the claim is not one of vicarious liability. Dr. Thomas engaged

in unlawful conduct by helping President Wendler implement the directive

canceling the event and on-campus drag shows generally. In other words, the

plaintiffs are seeking to hold him liable for his own actions. 9 The district

court erred in denying a preliminary injunction against Dr. Thomas. 10

We AFFIRM in part, REVERSE in part, and REMAND for entry

of a preliminary injunction against President Wendler and Dr. Thomas.

Additionally, we RENDER a judgment of dismissal for want of jurisdiction

on the claim against Chancellor Sharp.

_____________________

9

Because that is so, we need not address whether Section 1983’s limits on

supervisory liability apply in suits seeking injunctive relief against state officers through Ex

parte Young.

10

The third and fourth preliminary injunction factors favor enjoining Dr. Thomas

for the same reason that they favored enjoining President Wendler.

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James C. Ho, Circuit Judge, dissenting:

Spectrum WT claims that it has a First Amendment right to put on a

drag show in a public facility at West Texas A&M University. But university

officials have determined that drag shows are sexist, for the same reason that

blackface performances are racist. And Supreme Court precedent demands

that we respect university officials when it comes to regulating student

activities to ensure an inclusive educational environment for all. See

Christian Legal Society v. Martinez, 561 U.S. 661 (2010).

I disagree with the Supreme Court’s decision in CLS. But I’m bound

to follow it. And I will not apply a different legal standard in this case, just

because drag shows enjoy greater favor among cultural elites than the

religious activities at issue in CLS.

***

“Education should not be intended to make people comfortable; it is

meant to make them think.” Comm. on Freedom of Expression,

Univ. of Chicago, Report of the Committee on Freedom

of Expression (2015) (quoting President Hanna Holborn Gray).

But as anyone aware of current campus conditions nationwide can

attest, the vision of the university as a First Amendment haven is woefully

naïve—at least when it comes to views disfavored in certain circles.

Just ask the Christian Legal Society. Members of the CLS chapter at

the Hastings College of the Law sought to exercise their First Amendment

right to associate with fellow believers who share their Biblical views on

marriage and sexuality—just as politically affiliated student groups at

Hastings have been allowed to associate with fellow partisans who share their

ideological priors. See 561 U.S. at 672. But university officials chose to expel

CLS—and only CLS—from campus. See id. at 672–73. And the Supreme

Court sided with university officials over CLS. See id. at 669.

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In doing so, the Court acknowledged that forcing an organization to

accept unwelcome members “directly and immediately affects associational

rights” ordinarily protected by the First Amendment. Id. at 680 (quoting Boy

Scouts of America v. Dale, 530 U.S. 640, 659 (2000)).

But the Court insisted that the First Amendment must be analyzed

differently in “the educational context” and “in light of the special

characteristics of the school environment.” Id. at 685–86. The Court

contended that “judges lack the on-the-ground expertise and experience of

school administrators.” Id. at 686. So “we have cautioned courts in various

contexts to resist substituting their own notions of sound educational policy

for those of the school authorities.” Id. (cleaned up). Universities must

“enjoy a significant measure of authority” over student activities. Id.

(cleaned up). So courts must “approach our task with special caution” when

it comes to reviewing university policies. Id. at 687. Judges owe university

administrators “due decent respect” when considering constitutional

objections to their decisions. Id.

This is all bunk, of course. To begin with, when it comes to protecting

constitutional rights, judges should not blindly trust experts in education, any

more than we should in any other field. See, e.g., United States v. Skrmetti,

145 S. Ct. 1816, 1840 (2025) (Thomas, J., concurring) (noting “several

problems with appealing and deferring to the authority of the expert class”).

See also Whole Woman’s Health v. Paxton, 10 F.4th 430, 468 (5th Cir. 2021)

(Ho, J., concurring) (“scientists are . . . susceptible to peer pressure,

careerism, ambition, and fear of cancel culture, just like the rest of us”);

Ass’n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med.,

103 F.4th 383, 397 (5th Cir. 2024) (Ho, J., dissenting in part) (“At various

times throughout history, medical care has suffered—and patients have been

harmed, even killed—because doctors succumbed to social pressure and

desire for approval and advancement.”). Educational “experts” have been

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violating the constitutional rights of students for decades. See, e.g., Students

for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181

(2023); Gratz v. Bollinger, 539 U.S. 244 (2003); Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265 (1978).

What’s more, we should be especially suspect when academic

“experts” advocate policies that violate our nation’s most cherished

principles. Our Founders built this nation for a people faithful to their

Creator—and for educational institutions that favor religious devotion. As

the Supreme Court has noted, “[w]e are a religious people whose institutions

presuppose a Supreme Being. . . . When the state encourages religious

instruction or cooperates with religious authorities by adjusting the schedule

of public events to sectarian needs, it follows the best of our traditions. For

it then respects the religious nature of our people and accommodates the

public service to their spiritual needs.” Zorach v. Clauson, 343 U.S. 306, 313–

14 (1952). See also, e.g., The Federalist No. 2, at 9 (John Jay) (J. Cooke

ed. 1961) (“Providence has been pleased to give this one connected country

to one united people, . . . speaking the same language, professing the same

religion, attached to the same principles of government”); Northwest

Ordinance of 1789, 1 Stat. 50, 52 (1789) (“Religion, morality, and knowledge,

being necessary to good government and the happiness of mankind, schools

and the means of education shall forever be encouraged.”). 1

CLS contradicts all of these principles. But only the Supreme Court

can overturn its own precedents. So until the Court itself overturns CLS,

we’re bound to follow it.

_____________________

1

The Continental Congress adopted the Northwest Ordinance of 1787, and the

First Congress reaffirmed it in the Northwest Ordinance of 1789. See Fulton v. City of

Philadelphia, 593 U.S. 522, 577–78 (2021) (Alito, J., concurring); Tara Ross and Joseph C.

Smith Jr., Under God 88–89 (2008).

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And if we’re bound to respect university officials when they regulate

Christian groups over (contrived) concerns about discrimination, then we’re

surely bound to respect university officials when they regulate other groups

over concerns about discrimination. We should apply the same First

Amendment principles, whether the views are embraced or abhorred by

cultural elites. See, e.g., Oliver v. Arnold, 19 F.4th 843, 844 (5th Cir. 2021)

(Ho, J., concurring in denial of rehearing en banc) (courts should apply same

First Amendment principles “whether it’s a ‘liberal’ or ‘conservative’

public school teacher who is attempting to punish a ‘conservative’ or ‘liberal’

student”).

It would turn the First Amendment upside down to give greater

protection to drag shows than devotional acts. That would violate the

Constitution under the guise of enforcing it. It would discriminate not only

on the basis of viewpoint, but on the basis of religion as well—in violation of

not just the Free Speech Clause, but the Free Exercise Clause, too.

For all these reasons and more, I respectfully dissent.

I.

West Texas A&M President Walter Wendler concluded that drag

shows are demeaning to women. As he explained in an open letter to the

community, “WT endeavors to treat all people equally. 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.”

In opposing drag shows as derogatory towards women, Wendler

compared them to blackface performances. “As a university president, I

would not support ‘blackface’ performances on our campus . . . . I do not

support any show, performance or artistic expression which denigrates

others—in this case, women—for any reason.”

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Wendler is hardly the first member of the academy to regard drag

shows as sexist—or to compare them to blackface performances, which are

widely condemned as racist. See, e.g., Kelly Kleiman, Drag = Blackface, 75

Chi.-Kent L. Rev. 669 (2000). As one scholar has observed, “the same

arguments that forged the cultural consensus against blackface should forge

a consensus against drag.” Id. at 669.

Drag shows “represent institutionalized male hostility to women.”

Id. They “may be glamorous or comic, and presented by gay men or straight

men,” but they all “represent a continuing insult to women, as is apparent

from the parallels between these performances and those of white performers

of blackface minstrelsy.” Id.

In sum, “[d]rag is misogynistic, no matter who performs it.” Id. at

682. See also, e.g., Dr. Grace Barnes, Drag: a sexist caricature, or a fabulous art

form?, The Guardian (Apr. 7, 2024) (“Drag can be compared to

blackface and yellowface: those holding the reins of power utilise

performance to mock those without power through a demeaning parody. . . .

[I]t is . . . exclusionary, sexist and insulting to women.”); Meghan Murphy,

Why has drag escaped critique from feminists and the LGBTQ community?,

Feminist Current (Apr. 25, 2014) (“Why do we despise performance

in blackface and celebrate performance in drag?”).

So it’s not surprising that university officials across the country have

opposed drag shows as demeaning to women. In IOTA XI Chapter of Sigma

Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), for

example, university administrators and student leaders were upset that a

fraternity hosted an event in which men “dressed as caricatures of different

types of women.” Id. at 387–88. Campus officials concluded that the event

had “created a hostile learning environment for women” and was therefore

“incompatible with the University’s mission.” Id. at 388. One dean stated

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in an affidavit that the event “perpetuated derogatory . . . sexual stereotypes”

and was “incompatible with, and destructive to, the University’s mission of

promoting diversity within its student body.” Id. at 392. The official worried

that the event “sends a message to the student body and the community that

we are not serious about hurtful and offensive behavior on campus.” Id.

(cleaned up). Hundreds of students protested, similarly condemning the

“sexist implications of this event in which male members dressed as

women.” Id. at 388. University officials ultimately sanctioned the fraternity

for hosting the event. Id. (The court’s decision preceded, and thus was not

bound by, the Supreme Court’s decision in CLS.)

University leaders voiced the same concerns in Texas A&M Queer

Empowerment Council v. Mahomes, 772 F. Supp. 3d 792 (S.D. Tex. 2025).

University officials there concluded that it contradicts “the value of respect

for others” to allow university facilities to be “used for drag shows that

involve biological males dressing in women’s clothing” and “wearing

exaggerated female make up and/or exaggerated prosthetics meant to parody

the female body type.” Id. at 799. “Drag Show Events are likely to create or

contribute to a hostile environment for women . . . as these events often

involve unwelcome and objectively offensive conduct based on sex . . . ,

particularly when they involve the mockery or objectification of women.” Id.

(The district court has stayed proceedings in that case, pending our court’s

decision here.)

II.

Moreover, if university officials allow men to act as women in campus

events like drag shows, they may feel compelled to allow men to act as women

in other campus events as well—like women’s sports.

Drag shows and women’s sports might seem, on first blush, to have

little to do with one another. But “[i]f we accept that people can change

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genders—or even if we don’t but agree to be ‘polite’ and call a man ‘she’—

then why shouldn’t ‘she’ be allowed to play women’s sports or bathe naked

in an all-women’s space? Why shouldn’t ‘she’ be allowed to enter women’s

abuse houses or be transferred to a women’s prison? Why accept one lie and

not the whole thing?” Allie Beth Stuckey, Toxic Empathy 55–

56 (2024). Allowing one activity might be the “predictable result” of the

allowing the other. Id. at 55. See also, e.g., Wittmer v. Phillips 66 Co., 915 F.3d

328, 337–38 (5th Cir. 2019) (Ho, J., concurring) (“[T]his case does not

simply concern . . . transgender discrimination. It affects every American

who uses the restroom at any restaurant, buys clothes at any department

store, or exercises at any gym. . . . [T]his debate also affects virtually every

school, college, dormitory, athletic activity, and locker room in America.”). 2

So it’s reasonable for officials to worry that these issues are not siloed,

but interconnected. What a university allows in an auditorium, it might have

to allow on an athletic field, too.

And the fear would be well taken, considering the broad and growing

concern that allowing men in women’s sports severely harms women—

including serious physical injuries as well as denial of athletic opportunities.

See, e.g., United Nations General Assembly, Report of the Special Rapporteur

on violence against women and girls, its causes and consequences: Violence against

women and girls in sports, U.N. Doc. A/79/325 (Aug. 27, 2024) (“Female

athletes are . . . vulnerable to sustaining serious physical injuries when female-

only sports spaces are opened to males, as documented in disciplines such as

in volleyball, basketball and soccer. . . . Injuries have included knocked-out

teeth, concussions resulting in neural impairment, broken legs and skull

_____________________

2

Cf. George L. Kelling and James Q. Wilson, Broken Windows, The Atlantic

29, 38 (March 1982) (“public drunkenness, street prostitution, and pornographic displays

can destroy a community more quickly than any team of professional burglars”).

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fractures.”); Athlete Safety Policy § 3.3, U.S. Olympic & Paralympic

Comm., available at https://www.usopc.org/safe-sport (removing men

from women’s sports, consistent with Executive Order 14201, to ensure that

“women have a fair and safe competition environment”); Sarah Parshall

Perry, Trans Athlete Injures Multiple Girls, Forcing Them to Forfeit. Wither

Thou, Feminism?, Heritage Found. (Mar. 5, 2024) (documenting

“injuries sustained by girls and women during athletic contests with

transgender athletes”); President Lewis Makes Statement on Women’s

Collegiate Athletics, Houghton Univ. (Mar. 4, 2024), available at

https://www.houghton.edu/news/president-lewis-statement-on-womens-

athletics/ (“Biological males’ participation in women’s athletics is wrong. . .

. [F]emale athletes are humiliated, silenced and robbed of hard-earned

opportunities.”); Elle Rogers, The Two Sexes Are Not Fungible: The

Constitutional Case Against Transgender-Inclusive Sports, 28 Tex. Rev. L &

Pol. 243 (2024); Riley Gaines, Hearing Before the House Subcomm. on Health

Care and Fin. Servs.: “The Importance of Protecting Female Athletics and Title

IX” (Dec. 2023), available at https://oversight.house.gov/wp-

content/uploads/2023/12/Testimony-Gaines.pdf (“[A]llowing men in

women’s competitions puts women and girls at greater risk of injury. . . .

[U]nsafe, unfair, and discriminatory practices towards women must stop.”);

Jessica Steffen, Hearing on the Fairness in Women’s Sports Bill Before the S.

Educ. Comm., 2021 Kan. Leg., Reg. Sess. (Feb. 23, 2021), available at

https://kslegislature.gov/li_2022/b2021_22/committees/ctte_s_ed_1/do

cuments/testimony/20210223_21.pdf.

III.

There are additional reasons why the case for respecting university

expertise is stronger here than in CLS.

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In CLS, it was well documented that university officials were

motivated by discriminatory animus against Christians. As Justice Alito

detailed in his dissent, CLS was hardly the only student group at Hastings

that violated the university’s purported “accept-all-comers” policy. Groups

like the Hastings Democratic Caucus, the Association of Trial Lawyers of

America, the Vietnamese American Law Society, and La Raza (to name just

a few) all had bylaws limiting membership or executive positions to only those

students who agreed with the organization’s viewpoints. See 561 U.S. at 712–

13 (Alito, J., dissenting). But CLS was the only group that Hastings expelled

from campus. See id. at 707.

In this case, by contrast, there’s no evidence of discriminatory animus

or selective enforcement. To the contrary, counsel for Spectrum WT readily

concedes that Wendler’s policy applies to everyone. Oral Arg. 14:05–:26.

Moreover, the record confirms that Wendler supports Spectrum WT. He

advocated fundraising for The Trevor Project and encouraged members of

the community to donate.

That leads to yet another reason why this is a much easier case for the

university than CLS. Hastings denied “official recognition” to CLS as a

registered student organization—and that included the denial of “the

attendant use of school funds and facilities.” CLS, 561 U.S. at 668. In

theory, CLS could still access university facilities—but only if facilities were

available after priority was first given to registered organizations. Id. at 716

(Alito, J., dissenting). That gave university officials the effective ability to

exclude CLS altogether. And that’s exactly what they did: When CLS tried

to reserve facilities, university administrators “did not respond until the

dates in question had passed.” Id. at 717.

Here, by contrast, there is no such blanket expulsion of a student

organization. Spectrum WT was stopped from using just one facility, for one

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event. It continues to enjoy as much access to Legacy Hall—and all other

campus facilities—as any other student group. And unlike in CLS, there is

no suggestion that university officials have ever refused to cooperate with

Spectrum WT in its efforts to host other on-campus events.

IV.

Notwithstanding all of this, the panel majority declines to apply CLS

here because it concludes that Legacy Hall is a designated public forum that

the university intended to keep open to all—and not a limited public forum,

as was in the case in CLS. See ante, at 18–20.

But in reaching this conclusion, the majority acknowledges that the

University explicitly “reserves the right to cancel an event and immediately

remove access to campus if an event violates the polices and regulations of

the Texas A&M University System, the rules and procedures of WTAMU,

or if an event is deemed to be unsafe.” Id. at 17.

This policy should answer all of the majority’s concerns. When a

university imposes “limits necessary to preserve the academic mission and

to maintain order,” it has established “a limited public forum, designated for

the speech of students.” Hays Cnty. Guardian v. Supple, 969 F.2d 111, 117–

18 (5th Cir. 1992). See also Doe v. Santa Fe Indep. School Dist., 168 F.3d 806,

820 (5th Cir. 1999) (noting that “university campus [in Hays] was limited

public forum”); Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346 n.12 (5th

Cir. 2001) (same); Justice For All v. Faulkner, 410 F.3d 760, 768 (5th Cir.

2005) (same).

And that policy is plainly triggered here. Like blackface performances,

drag shows violate the university’s fundamental mission to ensure a

welcoming educational environment for all.

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Tellingly (and quite understandably), the majority does not contend

that West Texas A&M would be required to allow a student group to put on

a blackface performance. The result should not be different here just because

drag shows find favor in certain circles. See Hays Cnty., 969 F.2d at 118 (“the

government’s policy is indicated by its consistent practice”).

The majority counters that the university has never used its policy

before to “limit access of the facilities to students or to only certain parts of

the public.” Ante, at 17. “No party offers evidence that a request for use has

been denied to a student or an outside group.” Id.

But that was true in CLS as well. As Justice Alito pointed out,

“Hastings currently has more than 60 registered groups and, in all its history,

has denied registration to exactly one: the Christian Legal Society (CLS).”

561 U.S. at 707 (Alito, J., dissenting). That did not prevent the Court from

respecting the university’s decision in CLS.

Moreover, there’s yet another problem with the majority’s forum

analysis. When it comes to non-traditional public forums (like designated

public forums), the government retains the discretion to impose new limits

on the forum, as new situations arise. “[A] State is not required to

indefinitely retain the open character of [a nontraditional public forum].”

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). See

also Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S.

788, 802 (1985) (same); Currier v. Potter, 379 F.3d 716, 728 (9th Cir. 2004)

(concluding that the government may close designated or limited public

forums “whenever it wants”); United States v. Bjerke, 796 F.2d 643, 647 (3rd

Cir. 1986) (“[O]fficials may choose to close . . . a designated public forum at

any time.”). And if the government retains such discretion even outside the

“educational context,” then a fortiori university officials—whose expertise

we are required to respect under CLS—retain that discretion as well.

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So nothing in the majority’s forum analysis authorizes us to enjoin

West Texas A&M from forbidding drag shows at Legacy Hall in the future.

***

If CLS requires respect for university efforts to protect members of

the LGBT community, then it surely requires respect for university efforts

to protect women. If a university may discriminate against a disfavored group

like CLS by expelling them from campus altogether, then a fortiori a

university may limit use of its facilities to protect the dignity and safety of

women. I respectfully dissent.

39