San Jose State University staff retaliated against players who objected to the male’s participation, according to the suit.
By allowing a male player to join the women’s volleyball team, San Jose State University deprived female athletes of their privacy and scholarship opportunities, and placed players at risk of physical harm, a group of female players and an assistant coach argue in a new lawsuit.
The suit — which names the Mountain West Conference and its commissioner, the California State University system, the head coach, and two university administrators — argues that female athletes’ constitutional rights were violated when they were forced to play alongside a male athlete and pressured not to voice their objections publicly.
“Recently, the [defendants] have collectively manipulated MWC [Mountain West Conference] rules, diminished sport opportunities for women, spread inaccurate information, used their positions to chill and suppress speech with which they disagree, and punished dozens of female collegiate volleyball student-athletes for taking a public stand for their right to compete in a separate sports category, all in a concerted effort to stamp out debate over women’s rights in sport,” reads the lawsuit, dated November 13.
Male athlete Blaire Fleming played women’s volleyball for Coastal Carolina University, then transferred to San Jose State University and joined the women’s volleyball team in fall 2022. Plaintiffs in the lawsuit claim San Jose State University failed to disclose Fleming’s sex; they further claim that Fleming experienced preferential treatment, and his membership on the team caused some female athletes to lose opportunities, particularly scholarships.
According to the lawsuit, plaintiff Elle Patterson joined San Jose State University and the women’s volleyball team in 2023 under the impression that she had a full scholarship and would be able to play both indoor and beach volleyball. However, after transferring, the women’s volleyball head coach Todd Kress told Patterson that he did not want any indoor volleyball players also playing beach volleyball. Patterson had been a top-rated beach volleyball player and was not permitted to play on the beach team. Meanwhile, Fleming was allowed to play both indoor and beach volleyball — despite never having played beach volleyball before.
Patterson further alleges that Kress abandoned his promises and did not award her a scholarship for the 2023 season, but he reassured her that she would receive a full scholarship for subsequent seasons; he later changed his mind and denied her a scholarship for the 2024 season. However, Fleming received a full scholarship — even though he missed more of the 2023 season than Patterson due to a hand injury.
“Because Fleming and Patterson played the same position, had Fleming not been on the team Patterson would have received a full scholarship to play on the SJSU Team during both the 2023 and 2024 seasons,” states the lawsuit.
Another plaintiff, Alyssa Sugai, transferred to San Jose State University in 2021 and played on the women’s volleyball team. She claims that in the following season, once Fleming had arrived as a transfer, she played the same position as him, but he was given a scholarship. Sugai also claims that she was told by a coach that Fleming was more “physical,” but she was not informed that he is male. Sugai argues she was unable to receive a scholarship offer from another school because she had insufficient game time due to Fleming being put on the court instead.
“Sugai was left to assume that Fleming was simply a better female athlete than she was and that there was nothing Sugai could do about it,” states the lawsuit. “As a result of her frustration and feelings of inadequacy because she was not able to make the starting line-up. . . and because her diminished playing time behind Fleming prevented her from receiving offers through the transfer portal, Sugai faced depression during and after the transfer portal period and ultimately determined that she had no realistic choice other than to give up playing collegiate volleyball after the 2022 season.”
Sugai learned that Fleming is male after ending her collegiate volleyball career. Once she “discovered Fleming’s true sex,” she states that everything “clicked” and it “made sense why I could never compare.”
“Sugai continues to suffer from depression, regret, emotional stress and sadness because so much of her feelings of self-worth and her dreams for her future had centered on volleyball,” reads the lawsuit. It adds that, if Sugai had been advised in 2022 that she would be competing against a male in the 2022 season, she would have either transferred to another school or waited another year to save eligibility, and she would not have taken out student loans.
The lawsuit further alleges that Sugai had been “deprived of the opportunity to make an informed choice of whether to disrobe in front of Fleming” because no university staff member had disclosed Fleming’s sex, and because Fleming never “fully disrobed” in front of Sugai.
Brooke Slusser, a plaintiff who transferred to San Jose State University in 2023 on a scholarship for the women’s volleyball team, similarly expressed discomfort that she had undressed in his presence. Slusser claims that she was not informed by university staff that Fleming is male, and she was often assigned to room with him on trips. Slusser later learned that she was frequently assigned to board with Fleming during road trips because Kress and other staff had asked Fleming who he wanted to room with, and he chose her.
“Due to her personal convictions and religious beliefs, Slusser would not have roomed with Fleming or changed clothes in front of Fleming if Slusser had known Fleming was male,” reads the lawsuit. “Slusser’s right to protect her bodily privacy was violated by SJSU, Kress, and the MWC through actions, policies and practices that caused her to lose her right to bodily privacy without consent and against her will.”
According to the lawsuit, Slusser learned that Fleming is male months after arriving at the university when she overheard two students talking; she was “initially unsure” what to do with “this new information” and did not discuss it for the remainder of the school year. In April, 2024, Fleming confirmed he is male to Slusser after a news article disclosed his sex.
Shortly after the news article was published, staff convened the women’s volleyball team for a meeting, where, according to the lawsuit, they were told not to discuss Fleming’s sex publicly and were threatened with consequences if they did. They were told that Fleming’s sex did not concern them — this was “Blaire’s story alone” — and further warned not to publicly voice any objections to playing alongside a male. The players were told that any criticism of Blaire’s participation constituted bigotry and could violate state law and/or university policy, thereby jeopardizing their scholarships.
“The SJSU Team members were told by SJSU administrators that such comments would indicate that they are ‘transphobic’ and could be considered a violation of Title IX, school policies, or state law,” reads the lawsuit. “These statements about the SJSU Team members being perceived as ‘transphobic’ were made to attempt to intimidate the girls into silence.”
The lawsuit states that the female athletes were worried about playing alongside Fleming and feared possible concussions, given that he was capable of spiking the ball at upwards of 80 miles per hour. Their fears appear to be well-founded: In 2022, female high school volleyball player Peyton McNabb was struck in the face by a ball that was spiked by a male player; she suffers from head and neck pain, vision problems, and partial paralysis to this day.
Some plaintiffs allege that they did voice concerns outside the team, and university staff subsequently retaliated.
Slusser filed a motion with the U.S. District Court for the Northern District of Georgia in late September, 2024 and asked to be added as a plaintiff in a lawsuit against the NCAA. Shortly thereafter, Laura Alexander, an athletic director at the university, warned Slusser that “speaking disrespectfully against the school or the NCAA would be against your letter of intent and could affect your scholarship,” and added that “I know this because I am on an NCAA committee.”
The lawsuit states that Slusser perceived these comments as a “direct threat,” and she further experienced “retaliation” from the university that created a “hostile environment.” The lawsuit alleges that Kress in particular stopped speaking to her, stopped coaching her, denigrated her in communications with team members, communicated with a private lawyer to get her removed from the team, and told others that he filed Title IX complaints against her based on comments she gave to journalists and public forums.
Fleming “colluded” with an opponent to injure Slusser, according to the lawsuit. Prior to a match against Colorado State University, a teammate received a direct message stating “please distance yourself from brooke [Slusser]. tomorrow at the game, it will not be good for her.” During the match, assistant coach Melissa Batie-Smoose noticed that Fleming was ignoring her instructions, intentionally not blocking, and winking at opponent Malaya Jones. During the match, Fleming tapped the ball to Jones, who spiked the ball towards Slusser. Batie-Smoose concluded that Fleming was attempting to throw the match.
Another member of the team, Chandler Manusky, later told her teammates that she had snuck out of the hotel with Fleming and met with Jones prior to the game. Manusky then brought this information to coaches Kress and Batie-Smoose.
“Manusky said that. . . [Fleming and Jones] had discussed Fleming ‘throw[ing] the game’ and how they would set up Jones to ‘blow up’ Slusser and ‘blast’ her in the face during the game,” states the lawsuit. “Manusky also said that Fleming stated, ‘I’m going to leave center court open,’ which would allow Malaya Jones to have a wide-open shot to try to ‘blow up Slusser,’ i.e., to try to hit Brooke Slusser in the face with the ball.”
Kress told Batie-Smoose that he thought Manusky had made up the story to avoid consequences for violating policies and leaving the hotel. However, Batie-Smoose found that implausible, in part because they had not known Manusky left the hotel until she confessed. Batie-Smoose found the story serious and thought there was sufficient corroboration to involve law enforcement for an investigation — but she believes such intervention never happened, nor did the university fulfill its requirement to immediately report the new information to the Mountain West Conference.
“Kress and [administrator] Alexander did not promptly and properly initiate an investigation or report to the MWC regarding Fleming’s alleged efforts to injure Brooke Slusser in retaliation for Slusser bringing forward Title IX concerns,” states the lawsuit. “The failure . . . to properly bring forward corroborated allegations of potential ethical misconduct, including collusion, throwing a game, and trying to physically harm Slusser raises an inference that SJSU, Kress, and Alexander sought to punish and retaliate against Slusser for filing Title IX claims referencing the SJSU Team and/or that they did not wish the allegations against Fleming to be investigated and/or that they did not want Slusser to be protected against violence.”
Batie-Smoose argues that the university has retaliated against her, in part because she “questioned Kress’s preferential treatment toward Fleming” and tried to “protect” the female athletes who raised concerns. The university’s retaliation escalated in November of this year when a university official blocked Batie-Smoose from entering a gym before a team game. The official told Batie-Smoose that she was suspended indefinitely, effective immediately; she had to return her school ID and keys, and was instructed to leave campus immediately. She was told she would have to make arrangements to retrieve any personal belongings in her office.
The lawsuit further claims that the Mountain West Conference violated its own procedures when it introduced “Transgender Participation Policies,” as well as a new policy on forfeitures. The new policy penalizes teams for forfeiting over the participation of male athletes by counting the forfeited game as a loss, when under the previous policy teams would not be penalized for forfeiting over safety concerns. The Mountain West Conference updated the policies in its handbook on the same day Boise State University withdrew from a women’s volleyball match against San Jose State University, and the lawsuit argues that the policy “was specifically drafted and posted to target and suppress the very expressive conduct that it was used to penalize on the very day it was posted.”
In addition to arguing that the Mountain West Conference violated 14th Amendment rights that protect against sex discrimination, the lawsuit asserts that the conference penalizes athletes for exercising their First Amendment rights in part because the forfeiture policy is “clearly targeted only at protests that express the specific viewpoint that men should not participate in women’s college sports.” It further alleges that the Mountain West Conference has an “anti-whistleblower provision” that prevents a school from asking the MWC or NCAA about “the status or eligibility of a transgender student-athlete.”
“[The policy] was designed specifically and solely to conceal facts and punish women’s volleyball student-athletes who would dare to protest against having to play against a man competing on a women’s team,” the lawsuit argues.
Representatives for SJSU, the NCAA, and the Mountain West Conference did not respond when asked to comment on the allegations made in the lawsuit. Nor did any of the individuals named in the lawsuit, save one administrator, Michelle Smith Mcdonald, who declined to comment.
Opposing teams have withdrawn or forfeited at least seven matches scheduled to be competed against Fleming, according to the Daily Mail.
“Slusser and others have been hit in the head and about their body by volleyballs hit by Fleming causing greater bruising, pain, and discomfort than what they experienced from similar hits by female volleyball players,” states the lawsuit.
In a match against San Diego State University, Fleming spiked the ball and hit opponent Keira Herron, knocking her down. A video of the incident went viral on social media, and even prompted comments by President-elect Donald Trump.
“I saw the slam, it was a slam. I never saw a ball hit so hard, hit the girl in the head,” Trump said in 2024. “But other people, even in volleyball, they’ve been permanently, I mean, they’ve been really hurt badly. Women playing men. But you don’t have to do the volleyball. We stop it. We stop it. We absolutely stop it. You can’t have it.”
San Diego State University issued a statement in response and denied Trump’s characterization, claiming that “the ball bounced off the shoulder of the student-athlete, and the athlete was uninjured and did not miss a play.”