SJSU trans athlete’s misconduct investigation: New details emerge

EXCLUSIVE: Again in November, legal professional Tim Heaphy of the legislation agency Willkie Farr & Gallagher led a third-party investigation into allegations towards San Jose State’s transgender volleyball participant Blaire Fleming of conspiring with an opponent to hurt a teammate. Heaphy carried this out in the identical month that different companions in his agency labored to guard Fleming’s eligibility to compete in girls’s school volleyball. Heaphy later provided the college authorized counsel to assist it navigate a federal Title IX investigation over the identical state of affairs. The provide was declined.

Fleming, the trans athlete on the heart of a nationwide controversy final fall, was accused in a Title IX criticism and a separate lawsuit of discussing plans to have teammate Brooke Slusser spiked within the face throughout a recreation towards Colorado State on Oct. 3. 

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Slusser advised Fox Information Digital she beforehand had a concussion her junior 12 months in 2023. She claims she has since made acutely aware efforts to keep away from blows to the pinnacle out of worry of potential long-term mind injury from a second concussion. 

“It might have probably ended my profession or actually affected me long run,” Slusser mentioned. “As a result of my first concussion was so unhealthy, generally simply getting bonked within the head by a serve, which isn’t even that unhealthy, would make me a little bit dizzy generally. So it did scare me, if I did even get one other little minor concussion, how it could have an effect on me.” 

Slusser was by no means spiked within the face throughout the Oct. 3 recreation. Nonetheless, allegations introduced by an SJSU teammate who claimed she witnessed Fleming conspiring with an opposing participant nonetheless prompted the Mountain West Convention to launch an official investigation.

The Mountain West Convention employed Willkie Farr & Gallagher to guide the investigation, and Heaphy was assigned to guide it. Heaphy corresponded with Dustin Might, College Counsel for California State College and San José State College, to coordinate interviews, as seen in public information obtained by Fox Information Digital. 

“The Mountain West has employed the legislation agency of Willkie Farr & Gallagher to conduct a assessment of the allegations. Legal professional Timothy Heaphy is taking the lead on this investigation and is copied right here,” learn Nov. 12 emails despatched by San Jose State athletics director Jeff Konya to SJSU head volleyball coach Todd Kress and former assistant coach Melissa Batie-Smoose. 

Heaphy beforehand served because the chief investigative counsel to the U.S. Home of Representatives choose committee to research the January 6 capitol protests.

Kevin Marino, legal professional for Invoice Stepien, former marketing campaign supervisor for Donald Trump’s 2020 marketing campaign, left, speaks to Tim Heaphy, chief investigative counsel for the choose committee, throughout a listening to of the Choose Committee to Examine the January sixth Assault on the US Capitol in Washington, D.C., US, on Monday, June 13, 2022.  (Al Drago/Bloomberg by way of Getty Photos)

In the identical month of Heaphy’s investigation into allegations towards Fleming, companions at Willkie Farr & Gallagher represented the Mountain West in a request for a preliminary injunction filed by Slusser, Batie-Smoose and 10 different Mountain West girls’s volleyball gamers in search of to maintain the trans athlete out of the convention match. 

That request for a preliminary injunction was filed on Nov. 13, at which era Heaphy and Might have been within the strategy of coordinating interviews with witnesses for the investigation. 

The agency’s authorized battle to maintain the trans athlete within the girls’s match was profitable, as federal choose Kato Crews, appointed by former President Joe Biden in January 2024, dominated in favor of Fleming’s eligibility on Nov. 25. 

Two days later, after a failed enchantment by the plaintiffs, the agency posted an internet press launch asserting the authorized victory to maintain Fleming eligible to play. 

However that webpage has since been deleted. Fox Information Digital requested why the web page now not exists, however Willkie Farr & Gallagher didn’t reply to the inquiry.

Archived data exhibits the unique press launch stating, “Willkie secured a high-profile win for collegiate athletic convention Mountain West Convention in a swimsuit introduced by members of San Jose State College’s girls’s volleyball staff and different Mountain West groups that performed towards SJSU.” 

It later added, “The Willkie staff was led by companions Wesley R. Powell, Matt D. Basil and Jared Bartie, and included counsel Emerson Girardeau, and associates Autumn Adams-Jack, Jacey Norris, Emma Rosen, Chloe Smeltzer and William Weber.” Not one of the agency’s attorneys have been accused of violating any relevant guidelines {of professional} conduct.

In the meantime, Heaphy’s investigation into Fleming’s misconduct allegations closed simply three days after Konya’s Nov. 12 e mail to Batie-Smoose, on Nov. 15. Heaphy and Might corresponded by way of e mail with not less than 5 different witnesses, as seen in public information. 

California State College redacted the identities of these 5 witnesses that corresponded with Heaphy and Might throughout the investigation within the public information offered to Fox Information Digital. Slusser and Batie-Smoose advised Fox Information Digital that they every declined to interview with investigators.

SJSU ATHLETE WHO SUED OVER TRANSGENDER VOLLEYBALL TEAMMATE FLEES CAMPUS AFTER ALLEGED HARASSMENT AND THREATS

Brooke Slusser and Blaire Fleming of the San Jose State Spartans name a play throughout the first set towards the Air Drive Falcons at Falcon Courtroom at East Health club on October 19, 2024 in Colorado Springs, Colorado.  (Andrew Wevers/Getty Photos)

E mail correspondence between Heaphy, Might, Konya and Willkie Farr & Gallagher affiliate Fiona Carrol repeatedly incorrectly dated the SJSU vs. Colorado State recreation as happening Oct. 2, as seen in public information. The sport was performed Oct. 3.

A Nov. 15 letter obtained by Fox Information Digital, despatched by the Mountain West to each universities asserting the investigation closed with out discovering “ample proof,” additionally incorrectly dated the sport as Oct. 2. 

Within the Mountain West’s letter asserting the investigation closed, the convention said “there may be inadequate proof to corroborate the allegations of misconduct,” later including, “the Convention workplace has decided no disciplinary motion is warranted and considers this matter closed.” 

Slusser’s legal professional, William Bock of the Unbiased Council on Ladies’s Sports activities (ICONS), responded to the convention closing the investigation in a Nov. 17 assertion, calling the investigation “insufficient, and something however thorough.” 

“All such proof ought to be instantly and publicly disclosed together with the complete written investigative report of the MWC’s investigator,” the assertion added.

No proof was ever disclosed by the convention, as Fleming went on to complete out the season, earn all-conference honors and even led SJSU all the way in which to the Mountain West championship recreation. The trans athlete traveled and roomed alongside feminine teammates to Las Vegas within the remaining week of November for the match.

Slusser beforehand advised Fox Information Digital that she and her household even needed to share the identical eating room with Fleming for Thanksgiving in a Las Vegas lodge on Nov. 28. That morning, the staff had simply realized it could advance to the convention match after Boise State introduced it could forfeit the convention semifinal recreation to Fleming’s Spartans, after forfeiting twice within the common season. Boise State didn’t give a motive for these forfeits, however it’s extensively believed the gamers have been protesting being pressured to play towards a trans athlete.

Fleming’s collegiate profession then got here to an in depth that Saturday, Nov. 30, in a convention championship recreation loss to Colorado State — the identical opponent the athlete was accused of conspiring with to hurt Slusser, which Heaphy’s investigation cleared.

Heaphy reached again out to Might on Feb. 6 of this 12 months with a suggestion. President Donald Trump, who had simply returned to workplace partially based mostly on a vow to “maintain males out of ladies’s sports activities,” signed an government order to try to implement that mandate simply weeks into his presidency on Feb. 5. And simply in the future after that, Trump’s administration launched an investigation into SJSU over the Fleming state of affairs. 

“I noticed an ESPN report that the Division of Schooling has opened an investigation of San Jose State College relating to the participation of a transgender volleyball participant. I’m conversant in these information from my be just right for you and the Mountain West convention final fall,” Heaphy wrote to Might in a Feb. 6 e mail. 

“I additionally do a number of work on OCR investigations with the Dept of Ed — together with a big decision of a Title VI matter that I lately resolved with that workplace for the College of Washington. For those who’re in search of outdoors counsel to have interaction with the Dept on this matter, I would be glad to assist.” 

Might responded on Feb. 18, declining Heaphy’s provide.

Heaphy responded the subsequent day, writing, “Please let me know if we may also help in any method on this or different points.” 

The DOE’s investigation into SJSU’s dealing with of the state of affairs involving Fleming is ongoing.

The allegations involving Fleming first got here to gentle in a Title IX criticism filed by Batie-Smoose on Oct. 29 and have been reiterated in Slusser’s lawsuit towards SJSU and the Mountain West.

Each paperwork allege Fleming and two different San Jose State gamers snuck out of the staff lodge in Colorado the evening earlier than the Oct. 3 match, and went to the dorm room of Colorado State participant Malaya Jones. Fleming is alleged to have mentioned plans with Jones there to have Slusser spiked within the face throughout the recreation.

Slusser has advised Fox Information Digital and alleged in her lawsuit towards the Mountain West and SJSU that the evening earlier than the sport, one among her teammates approached her with a warning after the teammate acquired a textual content message. 

“One in every of my teammates acquired a DM, mainly saying that she, after which my staff, wanted to maintain my distance from me on gameday towards Colorado State, as a result of it wasn’t going to be a superb state of affairs for me to be in and that my staff wanted to maintain their distance,” Slusser beforehand mentioned. 

It’s unclear whether or not the warning stemmed from Fleming’s alleged plan to have Slusser spiked within the face. 

When gamers arrived at Moby Enviornment for that recreation, there was a notable police presence, with a number of officers stationed all through the venue. 

Colorado State College police behind the San Jose State College Spartans bench monitor Moby Enviornment throughout an NCAA Mountain West girls’s volleyball recreation between the Spartans and the Colorado State Rams in Fort Collins, Colo., on Thursday, Oct. 03, 2024. (Santiago Mejia/San Francisco Chronicle by way of Getty Photos)

And whereas the spike to Slusser’s face by no means got here throughout that Oct. 3 recreation, Batie-Smoose advised Fox Information Digital that she had suspicions about Fleming’s intentions throughout play, earlier than the assistant coach was ever even knowledgeable in regards to the allegations. 

Fleming led the sport with 10 errors as San Jose State misplaced in straight units. 

“In set one, I name blocking, Blaire was not me, wouldn’t even give me eye contact when [Fleming] saved organising the block incorrect, did not comply with the sport plan,” Batie-Smoose mentioned. 

“[Fleming] would not have a look at me, would not acknowledge me, so then I advised [Kress] ‘I do know that is loopy, however I believe that she’s throwing the match and she or he’s undoubtedly not listening to a phrase I am saying about blocking.'”

Batie-Smoose mentioned she remembers an alleged second on the finish of the primary set that prompted additional concern. 

“Near the tip of that set was when [Fleming] overpassed a serve proper on prime of the online for Malayla to hit towards Brooke Slusser, after which these two have been form of all the time doing eye contact and making smirks as much as that time. However then when that occurred, they each laughed and [Fleming] mentioned, ‘Thanks,’ and that is when Blaire blew her a kiss,” Batie-Smoose alleged.

NEVADA VOLLEYBALL PLAYERS WERE PRESSURED WITH ‘LEGAL ISSUES’ TO PLAY SJSU TRANS PLAYER DURING FEUD WITH SCHOOL

“After which I turned to [Kress] and I mentioned, ‘don’t you see this interplay, this s— that is happening?'” 

By the third set, Batie-Smoose mentioned she was so unnerved by Fleming’s disobedience that she felt compelled to ask Kress when he could be taking the trans participant out of the sport. 

“I used to be like, ‘You’d take anyone else out for a 3rd of these errors’… however then he’s actually behind my again on objective telling [assistant volleyball coach] Julian [Abreu], ‘Oh my God, that is so horrible for Blaire, all these items is taking such a toll on Blaire, I really feel for her!’ and I used to be similar to, ‘That is loopy,’” Batie-Smoose mentioned. 

Former affiliate head coach Melissa Batie-Smoose with the San Jose St. Spartans as they play Air Drive in an NCAA girls’s volleyball recreation at Spartan Health club in San Jose, Calif., on Thursday, Oct. 31, 2024. (Santiago Mejia/San Francisco Chronicle by way of Getty Photos)

Batie-Smoose claimed she then realized in regards to the misconduct allegations towards Fleming from one other participant on the staff when the staff returned to San Jose after the sport. 

After Batie-Smoose filed the Title IX criticism, which first publicized the allegations towards Fleming, the coach was suspended from the staff on Nov. 2 and didn’t return. She was knowledgeable on Jan. 31 that her contract wouldn’t be renewed. 

Batie-Smoose’s dwelling was then vandalized with a pellet gun on the evening of Feb. 10, Scotts Valley Police Division Captain Scott Garner beforehand confirmed to Fox Information Digital. No motivation was decided. 

Across the similar time, Slusser fled the SJSU campus. It was shortly after the beginning of the spring 2025 semester, on account of receiving alleged threats and harassment from different college students for her stance in opposing trans inclusion in girls’s sports activities. She completed her diploma from her household dwelling in Texas. 

Slusser has grow to be a recurring speaker in her dwelling state’s legislature, advocating on behalf of payments that will grant protections for girls and girls’s areas from biologically male transgender folks. 

In the meantime, Fleming celebrated commencement from San Jose State in a social media put up in Might. 

Fox Information Digital has reached out to the Mountain West, Willkie Farr & Gallagher, San Jose State College, Kress, Colorado State College and Jones’ present college, Southern Methodist College (SMU), for a response. Jones transferred to SMU after the tip of final season. No response has been offered by these events.

Might’s workplace initially responded to Fox Information Digital’s request for remark after offering the general public information, requesting an inventory of questions and background data be offered earlier than talking. Fox Information Digital didn’t present the knowledge or record of feedback, and requested a digital or cellphone interview. 

Might’s workplace then responded with the assertion, “Any hypothesis that the agency or legal professional talked about in your inquiry represented SJSU or the CSU is unfounded.” Fox Information Digital had not posed that query or some other stipulation, solely an interview request, at that time. 

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Fox Information Digital later adopted up with Might’s workplace requesting an interview to handle different questions, and fulfilled his workplace’s request to supply background data on what could be mentioned. 

Might’s workplace responded saying, “He won’t be out there,” and has not responded to request for additional remark.

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