From the motion for a TRO and preliminary injunction in Texas A&M Queer Empowerment Council v. Mahomes, just filed yesterday by the Foundation for Individual Rights and Expression (JT Morris, Adam Steinbaugh & Jeffrey Zeman):
For years, Plaintiff Queer Empowerment Council has exercised its unquestionable First Amendment right to organize, fund, and host an annual drag show, Draggieland, in venues open for student performances at Texas A&M University–College Station. The recognized student group has been preparing to host Draggieland again at the Rudder Theatre on Texas A&M's campus on the evening of March 27, 2025. Campus staff readily approved the group's reservation months ago.
But on February 28, the Texas A&M System Board of Regents took aim at Draggieland, passing a resolution banning drag shows from campus venues ("Drag Ban"). The Regents left no doubt about their motives, insisting that drag performance "promote[s] gender ideology" and "demeans women." …
Texas A&M University opens performance and event venues in its Rudder Theatre Complex for use by recognized student organizations. These include the Rudder Theatre, one of the venues inside the Rudder Theatre Complex. These venues supplement the classrooms on campus, providing students with spaces to present their own artistic, cultural, and political events—where students can "gain exposure to diverse political thoughts and viewpoints different from their own." Tracking its "Expressive Activity on Campus" policy, the University provides content-neutral regulations for using the Rudder Theatre, And it places no limit on content or subject matter. In fact, the University holds Rudder Theatre out as suitable for "events such as Broadway productions, concerts, variety shows, movies, lectures, conferences, commencement ceremonies, and recitals."
Past and upcoming events in the Rudder Theatre Complex venues include performances of the Broadway musicals Chicago and Hadestown, each employing "mature themes," and The Cher Show, featuring women in risqué costumes. Students also use the Rudder Theatre to hold an annual "Miss Black & Gold" women's pageant. Students and community members seeking entertainment can attend concerts (whether by a jazz ensemble, South Korean pop group, or Brazilian pianist), musical theatre (including student productions of Swan Lake and Oklahoma!), or comedy shows. And student organizations use it to host religious and political meetings, like an appearance by commentator Ben Shapiro, who denounced "transgressivism" by the LGBTQ+ community during his speech.
I think FIRE is generally quite right here. Once the university has broadly owned the theater for student expression, it can't then exclude presentations—whether drag performances or Ben Shapiro speeches—because of their viewpoint. And I agree that banning drag because it "promote[s] gender ideology" and supposedly "demeans women" is a viewpoint-based exclusion. (Theatrical performances have long been recognized as a form of expression that's as protected by the First Amendment as is a speech.)
The ban also can't be justified through any First Amendment exception, including for obscenity:
The Drag Ban does not hint at obscenity. Nor could it. According to the Board of Regents, "Drag Show Events" involve "biological males" choosing what "women's clothing" to put on and perform in. They do not involve nudity, let alone the type of depiction satisfying the constitutional test for obscenity. See Miller v. California (1973) (unprotected obscenity must "appeal to the prurient interest in sex," "portray sexual conduct in a patently offensive way," and "not have serious literary, artistic, political, or scientific value").
And the ban can't survive strict scrutiny:
Public university officials never have a compelling interest in banishing a category of protected expression from campus as the Board of Regents has done here. Disagreement with a perceived message is never a legitimate governmental interest, let alone a compelling one….
[T]he Board of Regents' hand-wringing over "mockery or objectification of women" is not a compelling interest. Drag shows present no tangible harm to women—and Defendants cannot show otherwise.
Likewise, the Board of Regents' concerns about a "hostile environment" and harassment under Title IX are unavailing. As then-Judge Alito observed in striking down a harassment policy challenged by religious students, there "is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.). To prevent federal anti-discrimination law from morphing into an all-purpose campus speech code, courts have carefully defined hostile-environment harassment, requiring that the conduct be so "severe, pervasive, and objectively offensive" that it effectively denies a student access to educational opportunities. Draggieland comes nowhere close to satisfying this standard.
To start, Draggieland is an annual event—that's not "pervasive." Nor is it "objectively offensive" to attendees voluntarily entering a ticketed event in an enclosed theatre. Those attendees are not denied access to an event; they are trying to access it. And a theatrical event is not "severe" conduct that would prevent any student from attending classes or participating in campus activities. A public university campus is not a "safe space" from ideas, and Draggieland in no way creates a hostile environment for any student as that phrase is defined in law. Defendants cannot justify the Drag Ban on a paternalistic desire to shield students from speech the Regents find offensive.
The Board of Regents' asserted interest in following the Executive Order banning the "promotion of gender ideology" fares no better as a compelling interest. For one thing, the Executive Order is directed at federal agencies, not state public universities. And even if it applies, the Executive Order merely states that "Federal funds shall not be used to promote gender ideology." Draggieland, conversely, is entirely funded through the Council's own funds that it raises. It receives no funding from Texas A&M. And the University has an unyielding obligation to uphold its students' First Amendment rights, not trot out an irrelevant Executive Order as pretext for censoring protected expression its officials dislike….
A compelling interest demands more than what the Board of Regents offers, for good reason. Permitting public university officials to quash speech on flimsy concerns about harassment or federal funds would imperil protected campus expression from political speech to pure entertainment. DeJohn v. Temple Univ. (3d Cir. 2008) (harassment policy would reach "'core' political and religious speech, such as gender politics")….
Exiling protected expression from a university campus just to shield some from certain viewpoints is neither narrowly tailored nor a least restrictive means. Instead, those who find a drag show "demeaning" or "lewd" can choose not to attend and "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California (1971). As the Supreme Court observed, the First Amendment "leaves matters of taste and style so largely to the individual," because government officials "cannot make principled distinctions" between what is "palatable" or "distasteful." The Board of Regents is no different.
For an amicus brief from our own Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, and me, making similar arguments in another Texas case, see here. That case, Woodlands Pride, Inc. v. Paxton, is now pending in the Fifth Circuit.
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