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FIRST ON FOX: The U.S. Department of Education (ED) announced Wednesday that it has determined that San Jose State University violated Title IX over its handling of a transgender former volleyball player. The university now has 10 days to comply with a series of agreements or risk “imminent enforcement action.”
The ED launched an investigation into the university last February after a highly publicized college volleyball season in which seven teams lost matches to SJSU amid controversy.
Former SJSU co-captain Brooke Slusser joined multiple lawsuits against the NCAA, Mountain West Conference and university officials after alleging she was forced to share locker rooms and bedrooms with trans teammate Blaire Fleming in 2023 without being told that Fleming is biologically male.
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SJSU trans player Blaire Fleming and teammate Brooke Slusser went to a magic show and spent Thanksgiving together in Las Vegas despite an ongoing lawsuit alleging Fleming was transgender. (Thien-An Truong/San Jose State Athletics)
Former assistant coach Melissa Batie-Smoose was suspended and later not re-signed to a new contract after filing a Title IX complaint against the school for its handling of Fleming.
The ED has now determined that SJSU denied women equal educational opportunities and benefits and that the school retaliated against female athletes who spoke out.
“SJSU caused significant harm to female athletes by allowing a man to compete on the women’s volleyball team – creating competitive unfairness, compromising safety and denying women equal opportunities in athletics, including scholarships and playing time,” ED Assistant Secretary for Civil Rights Kimberly Richey said in a statement to Pakinomist Digital.
“Even worse, when female athletes spoke out, SJSU retaliated – ignoring allegations of gender discrimination while subjecting a female SJSU athlete to a Title IX complaint for allegedly ‘misgendering’ the male athlete competing on a women’s team. This is unacceptable. We will not relent until SJSU’s titles are held and held accountable. protect future athletes from the same indignities.”
Among the department’s findings, it determined that a female athlete discovered the trans student allegedly conspired to have a member of an opposing team spike her in the face during a game. ED alleges that “SJSU did not investigate the conspiracy, but later subjected the female athlete to a Title IX complaint for ‘misgendering’ the male athlete in online videos and interviews.”
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Slusser claimed in her November 2024 lawsuit against Mountain West that she and Batie-Smoose were made aware of a meeting between Fleming and Colorado State women’s volleyball player Malaya Jones on October 2, 2024, in which Fleming discussed a plan with Jones to spike Slusser in the face during a match the following night.
The Mountain West Conference launched its own investigation into the allegations, but determined that insufficient evidence could be found to consider disciplinary action.
However, Pakinomist Digital reported in the summer of 2025 that the Mountain West hired the same law firm to conduct the investigation that defended the conference against Slusser’s lawsuit, which included the same allegations against Fleming.
The lawyer appointed to lead the investigation was Timothy Heaphy of Willkie Farr & Gallagher (WFG). Heaphy previously served as lead investigative counsel for the US House of Representatives Select Committee to investigate the January 6 Capitol riots.
Former SJSU volleyball captain Brooke Slusser with her parents Paul and Kim Slusser, with Tim Heaphy and Blaire Fleming. (Getty Images/Courtesy of Kim Slusser)
WFG later deleted a webpage in a press release announcing that it had successfully defended the Mountain West against a request for a preliminary injunction that would have made Fleming ineligible to complete the 2024 season and compete in the Mountain West tournament.
Slusser later told Pakinomist Digital that she had a conversation with a teammate who was interviewed as part of the conference’s investigation into Fleming’s alleged scheme. Pakinomist Digital is not disclosing the identity of the teammate.
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“Based on what I was told, exactly what one of my teammates had seen happen that night — about talking about the scouting report and leaving the net open — was told to those lawyers. So that should have been enough evidence. [of the alleged plan by Fleming],” Slusser told Pakinomist Digital, adding that she wants to see the investigation reopened.
“People are telling you this happened and it’s not secondhand information. She was sitting there hearing the conversation between Blaire and [former Colorado State volleyball player] Malaya [Jones]. So to me, just from what I know without even having to dig deep into this investigation, there is sufficient evidence and they were told sufficient evidence.”
Pakinomist Digital cannot independently confirm that Slusser’s teammate confirmed the allegations against Fleming when he spoke with investigators.
Pakinomist Digital later interviewed SJSU Athletic Director Jeff Konya about Slusser’s allegations, playing a video clip of Slusser reciting those allegations at Mountain West media days on July 15.
“I have no idea if she’s telling the truth or not,” Konya said of Slusser’s claims.
Konya could not confirm or deny whether any of the witnesses interviewed corroborated the allegations against Fleming.
“I have no idea,” Konya said.
Batie-Smoose has filed her own lawsuit against the board of trustees of the California State University (CSU) system, as SJSU is one of 23 California-based schools that are part of the system. Batie-Smoose and her attorney Vernadette Broyles believe the suspension was “retaliation” for her Title IX complaint against Fleming.
Batie-Smoose said she wasn’t made aware Fleming was male until after she accepted the job at SJSU in February 2023, and claims she wasn’t officially told the truth about Fleming until she started asking around and head coach Todd Kress finally told her a few weeks into her tenure.
Batie-Smoose claims she was then told she could not tell other players or players’ parents about it.
“Todd Kress told me in passing … because I asked … ‘Oh, by the way, Blaire is a male,'” Batie-Smoose said, adding that she was threatened with being fired if she told other athletes or parents.
“Both Todd Kress and the administration, Laura Alexandra, were not allowed to talk about it, allow parents to know or anyone to know.”
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Meanwhile, the situation left a lasting physical and mental impact on Slusser. She previously told Pakinomist Digital that the panic and stress of that period in her life caused her to develop an eating disorder that led to severe anorexia that got so bad that she lost her menstrual cycle for nine months.
“I went from about 160 to 128 [lbs] in one semester. It’s definitely not healthy for someone my size to be that weight, and I ended up missing my menstrual cycle for nine months. So it was definitely serious,” said Slusser, who is 5-foot-11.
After the 2024 season and fall semester ended, Slusser’s parents saw the physical impact the situation was having on her and demanded she come home to Texas.
“As soon as the season ended, she came home for Christmas and we were like, ‘You’re not going back,'” her father, Paul Slusser, told Pakinomist Digital. He told his daughter, “‘You can pick up your stuff next summer when your lease is up and stay here.'”
As winter break ended and what would be her final semester began, Brooke attempted to complete her coursework online.
Her parents said she began online classes but dropped them soon after. Like one Division I scholarship athletedropping classes resulted in her losing her scholarship and her family having to pay for the full semester’s tuition out of pocket and her housing.
“We had to pay, basically, her mortgage and her apartment for the rest of the semester. So it was a pretty big financial burden for us when that happened,” Paul Slusser said.
She is no longer an SJSU student, and will finish her education at another school.
Now President Donald Trump’s administration is seeking consequences for the situation.
ED’s resolution conditions that SJSU must meet to avoid “imminent enforcement action” are as follows:
- Issue a public statement to the SJSU community that SJSU will adopt biology-based definitions of the words “male” and “female” and recognize that a person’s gender – male or female – is immutable;
- Specify that SJSU will comply with Title IX by segregating athletic and intimate facilities based on biological sex;
- State that SJSU will not delegate its obligation to comply with Title IX to any outside association or entity and will not contract with any entity that discriminates on the basis of sex;
- Restore to individual female athletes all individual athletic records and titles wrongfully appropriated by male athletes competing in female categories, and issue a personal letter of apology on behalf of SJSU to each female athlete for allowing her participation in athletics to be marred by gender discrimination; and
- Send a personal apology to all women who played in SJSU women’s indoor volleyball (2022-2024), beach volleyball in 2023, and to any woman on a team that lost instead of competing against SJSU while a male student was on the roster – expressing sincere regret for putting female athletes in that position.
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In 2025, the ED reached decisions with the University of Pennsylvania for its handling of transgender swimmer Lia Thomas and Wagner College for its handling of transgender fencer Redmond Sullivan. However, it was unable to reach agreements with state agencies in Maine and California, resulting in departmental lawsuits.
SJSU’s response will determine the next chapter in the president’s mission to “save women’s sports.”
