San Jose State University (SJSU) hired the same law firm to simultaneously defend a male student’s right to play women’s volleyball and investigate him for misconduct against his teammates, Fox’s Brian Thompson reported yesterday.
Willkie Farr & Gallagher attorneys represented the Mountain West Conference in November against twelve women requesting a federal court court ban SJSU volleyball player Blaire Fleming, a man, from the conference championships.
The plaintiffs included SJSU volleyball’s co-captain Brooke Slusser and former associate head coach Melissa Batie-Smoose, whom SJSU suspended after she filed a separate Title IX complaint against the school.
Willkie announced its “high-profile win” on its website on November 27 after Judge Kato Crews ruled against the women.
While some Willkie attorneys worked on defending Fleming’s presence in a women’s volleyball game, another was investigating Fleming’s alleged misconduct against Slusser.
Slusser began playing with SJSU in Fall 2023. Unaware of his true sex, Slusser lived with Fleming on campus and often shared rooms with him while traveling. After discovering Fleming was male from other SJSU students, Slusser and some of her teammates raised concerns about his participation on the team.
Tension on the team came to a head in an October game against Colorado State University. A now infamous video shows Fleming set the ball for Malayla Jones, a CSU player, to spike the ball at Slusser.
After the play, Jones appears to blow a kiss at Fleming.
Batie-Smoose claims she clocked Fleming’s bizarre behavior early in the game.
“In set one, I called blocking,” Batie-Smoose told Fox News Digital last year. “[Fleming] was not looking at me, would not even give me eye contact when [he] kept setting up the block wrong [and] didn’t follow the game plan.”
Fleming’s errors became so egregious, Batie-Smoose recalls, that she told head coach Todd Kress, “I know this sounds crazy, but I think [he’s] throwing the match and [he’s] definitely not listening to a word I’m saying about blocking.”
Batie-Smoose witnessed the interaction between Fleming and Jones and waited for Kress to pull Fleming from the game — but he never did. Instead, she heard him telling an assistant coach, “This is so horrible for Blaire, all this stuff is taking such a toll on Blaire, I feel for [him].”
After the game, Batie-Smoose learned that Fleming and another SJSU teammate had allegedly visited Jones’ dorm the night before the game. Another teammate had received a social media message warning SJSU players to keep their distance from Slusser.
Slusser recalled of the message:
Batie-Smoose filed a Title IX complaint making these allegations public on October 29. On November 12, SJSU launched an investigation into the incident headed up by Tim Heaphy — an attorney at Willkie.
Heaphy closed the investigation in just three days, concluding there was insufficient evidence to find Fleming guilty of wrongdoing. The official statement concluding the investigation misdates the initial incident, Fox’s Thompson notes — an ironic error for an ostensibly thorough probe.
Notably, Slusser and Batie-Smoose did not consent for Heaphy to interview them.
Some might chalk Willkie’s involvement in defending and investigating Fleming up to the Mountain West Conference retaining a single law firm. But Heaphy, at least, seems sympathetic to men competing in women’s sports.
On February 6, the Department of Education (DOE) announced an investigation into SJSU for violating Title IX. According to emails reviewed by Thompson, Heaphy offered to defend SJSU from the inquiry. Dustin Mays, head counsel for California State University and San Jose State University, allegedly turned him down.
Importantly, Justice Neil Gorsuch, writing for the majority, specifically clarified the court’s interpretation of “sex” in Bostock only applied to Title VII. Crews’ decision to cite favorable court precedent, omitting the Supreme Court’s caveat and other precedent finding Title IX does not protect discrimination against “gender identity” betrays dangerous bias.
The sentiment likely extends beyond Heaphy. Willkie has deleted its post announcing the firm’s successful defense of Mountain West and, by extension, Fleming. The scrubbed document notably refers to Fleming as a “transgender woman” and repeats highly suspect legal reasoning from Judge Crews concluding legal precedent establishes “‘sex’ under Title IX’s prohibitions includes discrimination based on an individual’s trans status or sexual orientation.’”
Perhaps most importantly, Willkie’s involvement in both cases further illustrates the web of secrecy and corruption surrounding Fleming’s participation in women’s volleyball. Slusser, Batie-Smoots and the other women in this case endured physical and financial retaliation to bring Fleming and SJSU’s misconduct to light.
Yet Fleming, for all intents and purposes, was allowed to come out on top. He continued playing women’s volleyball and graduated SJSU in May.
Slusser had to leave campus to finish her degree at home.
At least two other athletes lost scholarships and starting positions on SJSU’s volleyball and beach volleyball teams.
Batie-Smoots was fired in January.
SJSU’s prioritization of Fleming over the physical wellbeing and advancement of women is egregious and unjust. Please pray the DOE’s ongoing investigation will provide some relief to those that have been victimized.
Additional Articles and Resources
Yes, Girls Care When Boys Take Their Trophies
NCAA and San Jose State ‘Transgender’ Volleyball Player Usurp Women’s Rights
San Jose Coach Suspended for Filing Discrimination Complaint Against Transgender Player
Four Women’s Volleyball Teams Forfeit — Won’t Play Team with a Man
Appeals Courts Affirm Rulings Stopping the DOE’s Rewrite of Title IX