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FIRST ON FOX: The U.S. Department of Education (ED) announced Wednesday that it has determined San Jose State University violated Title IX due to 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 that saw seven teams forfeit games to SJSU amid the controversy.
Former SJSU co-captain Brooke Slusser joined multiple lawsuits against the NCAA, the Mountain West Conference and representatives of the university after alleging she had been made to share changing spaces and bedrooms with trans teammate Blaire Fleming in 2023 without being told that Fleming is a biological male.
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SJSU trans player Blaire Fleming and teammate Brooke Slusser went to a magic show and had Thanksgiving together in Las Vegas despite an ongoing lawsuit over Fleming being 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 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 male to compete on the women’s volleyball team—creating unfairness in competition, 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 provided to Fox News Digital.
“Even worse, when female athletes spoke out, SJSU retaliated—ignoring sex-discrimination claims while subjecting one 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 is held to account for these abuses and commits to upholding Title IX to protect future athletes from the same indignities.”
Among the department’s findings, it determined that a female athlete discovered that the trans student allegedly conspired to have a member of an opposing team spike her in the face during a match. ED claims 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 alleged in her November 2024 lawsuit against the 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 Oct. 2, 2024 in which Fleming discussed a plan with Jones to have Slusser spiked in the face during a match the following night.
The Mountain West Conference launched its own investigation into the allegations, but determined that sufficient evidence could not be found to deal disciplinary measures.
However, Fox News Digital reported in summer 2025 that the Mountain West contracted the same law firm to carry out that investigation that was defending the conference against Slusser’s lawsuit which included those very same allegations against Fleming.
The lawyer assigned to lead the investigation was Timothy Heaphy of Willkie Farr & Gallagher (WFG). Heaphy previously served as the chief investigative counsel to the U.S. 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 web page of a press release announcing it had successfully defended the Mountain West against a request for a preliminary injunction that would have had Fleming ruled ineligible to complete the 2024 season and compete in the Mountain West Tournament.
Slusser later told Fox News Digital she had a conversation with a teammate who was interviewed as part of the conference’s investigation into Fleming’s alleged plan. Fox News 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 go on that night — about talking about the scouting report and leaving the net open — was told to those lawyers. So, that should have been sufficient evidence [of the alleged plan by Fleming],” Slusser told Fox News Digital, adding she wants to see the investigation reopened.
“People are telling you this happened, and it’s not second-hand information. She sat there and heard 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.”
Fox News Digital cannot independently verify that Slusser’s teammate corroborated the allegations against Fleming when speaking to investigators.
Fox News Digital later interviewed SJSU Athletic Director Jeff Konya about Slusser’s claims, playing a video clip of Slusser reciting those allegations at Mountain West media days 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 “retaliatory” to her Title IX complaint over Fleming.
Batie-Smoose said she wasn’t made aware that 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 about it, and head coach Todd Kress finally told her, a few weeks into her tenure.
Batie-Smoose alleges she was then told she couldn’t tell other players or players’ parents about it.
“Todd Kress told me in passing… because I was asking… ‘Oh, by the way, Blaire is a male,’” Batie-Smoose said, adding that she was threatened she would be fired if she told other athletes or parents.
“Both Todd Kress and the administration, Laura Alexandra, was not allowed to talk about that, allow parents to know, or anyone to know.”
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Meanwhile, the situation left a lingering physical and mental impact on Slusser. She previously told Fox News Digital that the panic and stress from that period in her life caused her to develop an eating disorder, which led to severe anorexia that got so bad she lost her menstrual cycle for nine months.
“I went from around 160 to 128 [lbs] in that one semester. It definitely isn’t healthy for someone of my size to be that weight, and I ended up losing my menstrual cycle for nine months. So it was definitely severe,” said Slusser, who is 5-foot-11.
After the 2024 season and fall semester ended, Slusser’s parents saw the physical impact the situation took on her, and demanded she come home to Texas.
“As soon as the season was over, she came home for Christmas, and we were like, ‘You’re not going back,'” her father, Paul Slusser, told Fox News Digital. He told his daughter, “‘You can go get your stuff next summer when your lease is up, and stay here.'”
Once winter break was over, and what was supposed to be her final semester began, Brooke attempted to complete her courses online.
Her parents said she began online classes, but dropped them shortly later. As a Division I scholarship athlete, dropping the classes resulted in her losing the scholarship, and her family had to pay for the full semester’s worth of 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 large financial burden on 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 looking to bring about consequences over the situation.
The ED’s terms of resolution that SJSU must meet in order to avoid “imminent enforcement action” are the following:
- Issue a public statement to the SJSU community that SJSU will adopt biology-based definitions of the words ‘male’ and ‘female’ and acknowledge that the sex of a human – male or female – is unchangeable;
- Specify that SJSU will follow Title IX by separating sports and intimate facilities based on biological sex;
- State that SJSU will not delegate its obligation to comply with Title IX to any external 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 misappropriated by male athletes competing in women’s categories, and issue a personalized letter of apology on behalf of SJSU to each female athlete for allowing her participation in athletics to be marred by sex discrimination; and
- Send a personalized apology to every woman who played in SJSU’s women’s indoor volleyball (2022–2024), 2023 beach volleyball, and to any woman on a team that forfeited rather than compete against SJSU while a male student was on the roster—expressing sincere regret for placing female athletes in that position.
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In 2025, ED came to resolutions 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 Department lawsuits.
SJSU’s response will determine the next chapter in the president’s mission to “save women’s sports.”
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