Volleyball Players Sue Mountain West Alleging First Amendment Violations Tied To Transgender SJSU Player
A dozen women have filed a lawsuit against the Mountain West Conference and its commissioner, along with officials at San Jose State University. They allege violations of Title IX and of their First Amendment rights, all stemming from the presence of transgender player Blaire Fleming on the San Jose State roster, OutKick has learned.
The plaintiffs, which include San Jose State co-captain Brooke Slusser and two former Spartans, as well as athletes from four other Mountain West schools, allege the conference adopted a new "Transgender Participation Policy" in an attempt to "chill and suppress the free speech rights of women athletes."
The suit, which is seeking emergency injunctive relief ahead of the Mountain West Conference volleyball tournament set to begin in Las Vegas on Nov. 27, is the latest development in a story that has made headlines since OutKick first reported on Fleming’s inclusion on the San Jose State roster back in April.
"The NCAA, Mountain West Conference, and college athletic directors around the country are failing women," said Bill Bock, lead attorney for the plaintiffs and the pro-woman organization Independent Council On Women's Sport (ICONS), which is funding and backing the lawsuit.
"Because the administrators don’t have the courage to do their jobs, we have to ask the federal courts to do their jobs for them," Bock added.
SJSU's Blaire Fleming is at the center of the drama engulfing the Mountain West Conference.
(San Jose State Athletics)
The SJSU volleyball team’s story has become a focal point of the ongoing debate on transgender athletes and their participation in women’s sports, with Fleming’s presence on San Jose State prompting four Mountain West teams to forfeit six games in protest, citing safety risks.
Mountain West ‘Transgender Participation Policy’ At Center of First Amendment Lawsuit
According to the filing, the Mountain West adopted a new "Transgender Participation Policy" on the same day in September that Boise State forfeited its match against San Jose State, becoming the first conference team to do so.
The suit alleges Mountain West Commissioner Gloria Nevarez, named as a defendant, believed the "burgeoning controversy" around Fleming could lead multiple teams to protest like Boise State.
"This new policy was clearly intended to chill and suppress the free speech rights of women athletes in the MWC," the suit claims.
The filing further contends this new "Transgender Participation Policy" (TPP) was adopted hastily with the sole intention of stopping other schools from exercising their First Amendment rights, and suggests it was instituted outside the normal course of Mountain West rules and procedures.
Mountain West Commissioner Gloria Nevarez is one of several defendants named in a lawsuit filed by current and former conference volleyball players.
(Imagn Images)
The Mountain West did not immediately respond to requests for comment when OutKick reached out about the suit and some of its many allegations.
UPDATE (Thursday): A Mountain West spokesperson sent OutKick the following statement:
"The Mountain West Conference prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies. While we are unable to comment on the pending litigation of this particular situation, we take seriously all concerns of student-athlete welfare and fairness."
Seeking Fleming’s Disqualification Ahead of Mountain West Conference Volleyball Tournament
Despite the Mountain West Conference’s new TPP, other teams followed Boise State’s example.
Wyoming, Nevada and Utah State all forfeited their matches against SJSU, with Wyoming and Boise State forfeiting two matches each.
The wins for San Jose State and losses for the other teams roiled the conference standings.
All four schools that forfeited Mountain West contests are represented in the lawsuit.
There are three players from Wyoming, two players from Nevada, two players from Boise State and one player from Utah State named as plaintiffs.
The volleyball players in the suit claim the matches forfeited due to the presence of Fleming should not count as losses because the women were simply exercising their First Amendment rights and the newly-enacted TPP should not have passed in the first place.
The lawsuit thus seeks an injunction and asks for the conference to either disqualify San Jose State from competing in the conference tournament, disqualify Blaire Fleming from competing in the conference tournament, and/or remove the losses from the records of teams who protested by not competing against SJSU – and, subsequently, remove the wins from SJSU.
In a lawsuit filed Wednesday, several women's volleyball players are suing the Mountain West Conference for violating their First Amendment rights.
(Imagn Images)
If a judge were to grant the wins and losses adjustment, it would drastically alter the standings and could impact which teams qualify for the Mountain West volleyball tournament at the end of the regular season.
San Jose State, for example, would fall from second in the conference to sixth place. The winner of that tournament receives an automatic bid into the NCAA tournament.
Lawsuit Contains Shocking New Details About Alleged Thrown Match, Attempt To Injure Brooke Slusser
As OutKick previously reported, suspended associate head volleyball coach Melissa Batie-Smoose, the only non-player plaintiff in the new lawsuit, claimed transgender Blaire Fleming colluded with Colorado State player Malaya Jones to throw the match between the two teams on October 3. It's also alleged Fleming and Jones colluded to injure Slusser, who had joined a separate Title IX lawsuit and raised safety concerns about Fleming's participation.
The lawsuit outlines several new, and very important, details about the alleged incident.
According to the suit, three San Jose State players violated team rules by leaving the team's hotel the night before the match to meet at Jones' residence.
"After the SJSU Team got back to campus, student-athlete Chandler Manusky told teammates, including co-captains Alyssa Bjork and Brooke Bryant, that Manusky, Fleming, and [Randilyn] Reeves, had snuck out of the team hotel after hours the night before the [match]," the suit reads.
Manusky later spoke to SJSU coaches about the incident after Bjork and Bryant implored her to do so.
The San Jose State University Spartans volleyball team lines up for the playing of the national anthem and player introductions for their NCAA Mountain West match against the Colorado State University Rams.
(Getty Images)
According to Manusky's recounting, "They 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."
Manusky allegedly cried as she told coaches about the incident and asked them not to tell Fleming that she had come forward.
Inconsistencies Emerge Regarding Kress, Fleming Allegation
As OutKick previously reported, SJSU head coach Todd Kress, who is also a defendant in the lawsuit, later admitted this meeting occurred, but both he and Colorado State head coach Emily Kohan concluded the players were just "joking."
However, that contradicts Kress' initial reaction to hearing Manusky's account, according to Batie-Smoose.
"Shortly after Manusky left, Todd Kress told Batie-Smoose he did not believe Manusky and believed she had made up the entire story so she would not get in trouble for leaving the team hotel," the lawsuit says.
In addition, following the match against Colorado State, Kress granted Fleming and Reeves the right to not travel back to San Jose State with the team and allowed them to stay in Fort Collins.
"This was highly unusual, and when Batie-Smoose asked why Fleming and Reeves were not traveling back with the team, Kress said that Fleming had asked to stay behind in Colorado," the lawsuit says.
A lawsuit filed on Wednesday details match-fixing allegations against transgender San Jose State volleyball player Blaire Fleming.
(Getty Images)
Despite the mounting evidence that something occurred the night before that Colorado State match, including an alleged plan to injure an SJSU player, the lawsuit says there is no evidence that San Jose State investigated the incident.
OutKick has also found zero evidence that SJSU investigated this very serious allegation. There is also no evidence that the players were punished for leaving the team hotel, a violation of team rules.
"The failure by SJSU, Kress and [Senior Associate Athletic Director for Student-Athlete Wellness and Leadership Development Laura] Alexander to properly bring forward corroborated allegations of 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," the lawsuit alleges.
According to the suit, Batie-Smoose and Slusser were asked to meet with SJSU and the Mountain West following notice of impending legal action.
"On November 12, 2024, Batie-Smoose was contacted by SJSU to interview with counsel for the MWC and SJSU. Batie-Smoose was contacted to schedule this interview only after SJSU and the MWC received written notice of potential legal action against SJSU and the MWC by women’s volleyball athletes," the filing states and has similar language regarding Slusser.
Kress Allegedly Showed Favoritism Toward Blaire Fleming
The four plaintiffs connected with the SJSU volleyball team – Batie-Smoose, Brooke Slusser, Alyssa Sugai and Elle Patterson – allege the school violated their Title IX rights by showing favoritism towards biological male and transgender athlete Fleming, at the expense of the women on the team.
One allegation, put forth by Batie-Smoose, is head coach Todd Kress failed to enforce team policies and discipline towards Fleming on multiple occasions.
A lawsuit filed on Wednesday alleges that San Jose State head volleyball coach Todd Kress gave "preferential treatment" to transgender player Blaire Fleming due to Kress' "alignment with LGBTQ+ individuals."
(Getty Images)
According to the lawsuit, Batie-Smoose confronted Kress about what she perceived to be "preferential treatment toward Fleming" that was unfair to the women on the team.
"Kress responded that because of Kress’s alignment with LGBTQ+ individuals, Kress identifies with Fleming and considers Fleming to be facing similar challenges to those Kress believes he has faced," the lawsuit states.
"Batie-Smoose responded ‘what about the team?’ and that women as a class had long been discriminated against and were entitled to protection, to which Kress’s response was to focus solely on the difficulty of Fleming’s situation," the suit continues.
In addition, the filing states, "Kress has sought to characterize the positions of women student-athletes at SJSU who do believe Fleming is disqualified by sex from being on the women’s volleyball team as
‘hateful’ and referred to them in disparaging and vile terms."
Kress, when recently asked about favoritism toward Fleming, told OutKick he supports "marginalized groups."
"I’ve seen too much discrimination with my friends that are minority and immediate family members to not stand up for humanity, social justice and racial justice," Kress said via text message.
Beach Volleyball And A Scholarship That Never Came
Elle Patterson, a former SJSU volleyball player who also played for Kress and Batie-Smoose at Fairfield University, alleges Kress allowed Fleming to also play on the school's beach volleyball team, which she says he told her she could not do.
"In reliance upon Kress’s promises that she would receive a full athletic scholarship from SJSU and be able to play beach volleyball at SJSU, Elle accepted the promises by transferring to SJSU," the lawsuit states.
"However, after Elle arrived on the SJSU campus, Todd Kress told her that he did not want any indoor volleyball players to play beach volleyball," the suit continues.
"In contrast, Fleming was given preferential treatment and allowed to play beach volleyball when Fleming requested to do so even though Fleming had never played beach volleyball before."
In addition, Patterson claims that she never received a full athletic scholarship from SJSU, which instead went to Fleming.
"After the 2023 season, Todd Kress changed his mind about giving Elle a scholarship and told her that while he would like her to stay on the SJSU team, she would not receive a scholarship during the 2024 season," the lawsuit says.
"Although missing more of the 2023 season than Elle Patterson, Fleming retained the full scholarship Fleming has had throughout the time that Fleming played on the SJSU team."
Kress, along with two other SJSU employees, are named as defendants in the lawsuit.
OutKick asked the school if they had any comment on the lawsuit and a representative said that SJSU "will not comment at this time."
FULL FILING:
The Mountain West volleyball tournament is set to begin on Wednesday, Nov. 27, in Las Vegas.
OutKick will provide updates on this developing story as we have them.
(A previous version of this story stated Slusser and Bryant urged Manusky to come forward. It was Alyssa Bjork and Bryant. It also said Fleming asked to stay behind in CO to spend time with Jones. It is unclear why Fleming asked to stay behind.)