Fifth Circuit Reverses in Part Denial of Preliminary Injunction Over Canceled West Texas A&M Drag Show

The decision

On August 18, 2025, the U.S. Court of Appeals for the Fifth Circuit reversed in part a district court’s denial of a preliminary injunction sought by Spectrum WT, an LGBT+ student organization at West Texas A&M University, and two of its student officers, after University President Walter Wendler canceled a campus drag show. The court held that, on the current record, the intended show would have conveyed a discernible message implicating the First Amendment, that Legacy Hall is a designated public forum, and that Wendler’s content-based restriction was subject to strict scrutiny, which he had not argued it would survive. The court remanded for entry of a preliminary injunction against Wendler and Vice President of Student Affairs Dr. Christopher Thomas, and rendered a judgment dismissing the claim against Chancellor John Sharp for want of jurisdiction. Judge James C. Ho dissented.

The ruling concerns preliminary relief only. The opinion states: “Only the denial of the preliminary injunction is at issue in this appeal.”

Background

According to the opinion, Spectrum WT is a recognized student organization whose mission includes providing “a safe space for LGBT+ students and allies to come together.” It planned a charity drag show, “A Fool’s Drag Race,” for March 31, 2023, in Legacy Hall, a university venue, to raise funds for The Trevor Project, a charity addressing suicide in the LGBT+ community. The opinion states that the university had allowed student and non-student groups to use Legacy Hall for song-and-dance competitions, beauty pageants, praise and worship nights and political events, and that students had held a drag show there in 2019.

The plaintiffs reserved the hall on January 27, 2023, and university staff issued a tentative confirmation. They intended the show to be “PG-13” and barred attendees under 18 unless accompanied by a parent or guardian; the opinion notes that the planned emcee had performed in a highly sexual drag show off campus the previous month.

The plaintiffs allege that on March 20, 2023, Dr. Thomas told a student officer the show was canceled because Wendler believed drag shows discriminated against women. That day Wendler emailed the campus, under the subject line “A Harmless Drag Show? No Such Thing,” stating that “West Texas A&M University will not host a drag show on campus.” He called support for The Trevor Project “a noble cause” but wrote that drag shows “stereotype women in cartoon-like extremes for the amusement of others,” and drew an analogy to blackface performances.

The plaintiffs sued Wendler, Sharp, Thomas and members of the Board of Regents of the Texas A&M University System, held the show off campus, and amended their motion to seek a preliminary injunction permitting future shows. On September 21, 2023, the district court held Wendler entitled to qualified immunity on the damages claim and denied the injunction for the same reasons, appearing to treat Legacy Hall as a limited public forum. The plaintiffs appealed under 28 U.S.C. § 1292(a)(1).

The court’s reasoning

The opinion, by Judge Leslie H. Southwick, reviewed the First Amendment question and the injunction ruling de novo.

Whether the drag show is expressive conduct

Wendler argued the plaintiffs had not identified the “particular views” expressed by the show. The court began with Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the Supreme Court stated that “a narrow, succinctly articulable message is not a condition of constitutional protection.” It then reviewed Spence v. Washington, Rumsfeld v. FAIR and the Fifth Circuit’s Voting for America v. Steen, and reconciled them by stating that it saw “the main difference as being the clarity of the message”: it must be evident that conveying some message, “even if nearly opaque or perhaps smeared,” was intended.

The court rejected the district court’s suggestion that conduct lacking a specific message must be a work of fine art to be protected, calling that “an impossibly subjective standard” and citing Kleinman v. City of San Marcos. Turning to the planned show, which would have featured costumed performers on a stage mixing spoken and sung word with movement to music, the court stated that “it is evident that a message in support of LGBT+ rights was intended.” It accepted Wendler’s point that not every instance of wearing clothing of the opposite sex communicates such support, but stated: “We consider context dispositive.” The viewers would have been ticketed attendees at a performance sponsored by LGBT+ student organizations to raise funds for an LGBT+ suicide-prevention charity. The court added: “All we are determining in this step of the analysis is whether a discernible message would have been conveyed.”

Forum analysis and scrutiny

Wendler argued that “Legacy Hall is not open to the general public,” relying on the university’s Facility Use Request Procedure, and that Christian Legal Society v. Martinez (CLS Hastings) controlled. The court found that the procedure’s provisions on request routing, alcohol, restricted areas and parking placed no limits on who could use the hall or what kinds of expression were permitted, and that past uses — including a church worship night, a congressional candidate forum and a county livestock show — did not show such limits; no party offered evidence that a request had ever been denied. It concluded that Legacy Hall “would more comfortably fit among designated public forums than limited public forums,” based on the record “as the record exists now.”

The court distinguished CLS Hastings as involving expressive association in a limited forum used solely by student groups, whereas here the objection was to the manner of delivering a message. It stated that “President Wendler’s new anti-drag-show policy did not somehow transform Legacy Hall into a limited public forum,” because otherwise restrictions on speech would be “self-justifying.” A content-based restriction in a designated public forum is subject to strict scrutiny, and the court noted: “President Wendler did not argue, either before the district court or on appeal, that restricting the intended drag show would survive strict scrutiny.” It held the district court erred in finding no substantial likelihood of success, and did not reach the plaintiffs’ prior-restraint argument or any O’Brien analysis.

Irreparable injury, equities and public interest

Wendler argued future harm was speculative. The court relied on a letter informing it that Wendler had also canceled a tentatively scheduled March 2024 show, citing earlier reasons and stating that “S.B. 12 went into effect as a Texas law in September 2023,” and on counsel’s representation at oral argument “that no drag show is permissible at West Texas A&M University.” Quoting Elrod v. Burns, it stated that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” It merged the remaining factors because the government is a party and found them satisfied, adding that “[t]he university may still place reasonable time, place, and manner restrictions on the use of the facilities.” In a footnote it rejected Wendler’s sovereign-immunity argument as mirroring his merits arguments.

Chancellor Sharp and Dr. Thomas

Applying Jackson v. Wright, the court held that both Sharp and Thomas had the connection to enforcement required by Ex parte Young and that the plaintiffs sought prospective relief. It held, however, that the plaintiffs lacked Article III standing against Sharp for the relief they requested: they faulted him for not preventing others from enforcing the ban, so “[e]njoining Chancellor Sharp from helping enforce the drag show ban would in no way redress the plaintiffs’ injury.” Though Sharp had not requested dismissal, the court rendered a dismissal for want of jurisdiction, citing its duty to address jurisdiction sua sponte. It rejected Thomas’s vicarious-liability argument, stating that Thomas “engaged in unlawful conduct by helping President Wendler implement the directive canceling the event and on-campus drag shows generally.”

Separate opinions

Judge James C. Ho dissented. He wrote that under CLS Hastings courts must respect university officials’ judgments in regulating student activities, and that Wendler had determined drag shows are sexist for the same reason blackface is racist. He stated: “I disagree with the Supreme Court’s decision in CLS. But I’m bound to follow it.” He described the Supreme Court’s deference reasoning in that case with the words “This is all bunk, of course,” but wrote that he would not apply a different standard “just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.”

Judge Ho argued the case was easier for the university than CLS Hastings because there was no evidence of animus or selective enforcement and “Spectrum WT was stopped from using just one facility, for one event.” He contended that the university’s reserved right to cancel events violating its rules made Legacy Hall a limited public forum, and that governments may impose new limits on non-traditional forums. A separate section argued that permitting men to perform as women in campus events could lead to pressure to allow men in women’s sports.

Status

The court remanded for entry of a preliminary injunction against Wendler and Thomas and rendered a judgment of dismissal on the claim against Sharp. The opinion states that the plaintiffs sought a partial final judgment to appeal the denial of the damages claim but that the district court denied it, and that only the denial of the preliminary injunction was at issue on appeal. The decision was reported by national and Texas outlets.