Exclusion of Drag Shows from Texas A&M Venues Likely Unconstitutionally Viewpoint-Based
A short excerpt from today’s long decision by Judge Lee Rosenthal (S.D. Tex.) in Texas A&M Queer Empowerment Council v. Mahomes:
The Texas A&M Queer Empowerment Council (“QEC”), a student organization at A&M’s College Station flagship campus has, for each of the last five years, sponsored a drag show cleverly named “Draggieland” on campus. It is a ticketed event; only those who want to attend do so. Anyone who finds the performance or performers offensive has a simple remedy: don’t go. This year, the performance was scheduled for March 27, 2025. But on February 28, after tickets were sold, the A&M Board of Regents banned the show from its “Special Event Venues” [which are otherwise generally open to student groups -EV]. No one can go to the scheduled March 27 performance at the on-campus venue that was reserved in advance, even those who want to attend.
The court noted (among other things) that, when a university opens up venues to student groups, it can’t then impose viewpoint-based limits on the groups’ speech (see, e.g., Rosenberger v. Rector (1995), among many other cases); and the court concluded that this exclusion was viewpoint-based, because the premise of the exclusion was that drag shows are “demeaning” to women:
The Board argues that the ban is viewpoint-neutral because “[t]he Resolution finds that the act of a drag performance that falls within specific parameters—namely, one that features biological males dressing in women’s clothing with makeup or prosthetics exaggerating stereotypical female physiognomies, is open to the public, involves ‘sexualized, vulgar, or lewd conduct,’ and involves conduct that demeans women—is ‘inconsistent with the System’s mission and core values.'” Put another way, the Board argues that “[t]he Resolution targets conduct that is demeaning, regardless of whether that conduct is meant to express a viewpoint that is itself demeaning.” The Board appears to argue that the ban is not a viewpoint-based restriction because the QEC and Draggieland performers do not intend to convey a demeaning message.
The Board’s argument is both faulty in logic and contrary to longstanding First Amendment jurisprudence. First, “censorship based on a state actor’s subjective judgment that
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