Jonathan Waters’ attorney: Ohio State had options other than firing

August 7, 2014
Then-OSU Marching Band director Jon Waters conducts a concert at Veteran Memorial Auditorium Nov. 10. Credit: Lantern file photo

Then-OSU Marching Band director Jon Waters conducts a concert at Veteran Memorial Auditorium Nov. 10.
Credit: Lantern file photo

Terminated band director Jonathan Waters’ attorney believes Ohio State had legal options besides firing Waters when a university investigation found evidence of a sexualized culture.

A document from attorney David Axelrod’s firm, citing various court cases and legal guidelines and released Thursday, said schools have a variety of choices when deciding how to handle potential student-to-student harassment. But one Title IX expert said it’s not that straightforward.

Waters was fired after a report from a two-month investigation determined the band’s culture was “an environment conducive to sexual harassment,” according to a released statement from President Michael Drake last month. It concluded that Waters was either aware of, or reasonably should have been aware of, the “sexual” culture but didn’t do enough to address it or prevent it from happening.

Examples listed in the report include an annual band practice in Ohio Stadium that Waters attended where students were expected to march in only their underwear, sexually explicit nicknames that were given to new band members and a case where a female student was told to imitate a sexual act on laps of band members.

Waters has publicly appeared since he was fired to say that he thinks he deserves to be reinstated and that the investigation was flawed.

Thursday’s document said a school is not required to take any particular form of disciplinary action against students or employees as part of its corrective efforts in sexual harassment cases, according to the U.S. Department of Education’s Office of Civil Rights.

It also notes that while the Office of Civil Rights recommends that investigations like OSU’s finish in 60 days, there is no set period of time for schools to finish inquiries. The school has said a second investigation will take place because the first one had to have results ready in 60 days.

And the document pointed to a Supreme Court ruling that said after a school becomes aware of a “hostile environment” of harassment, it can only be held liable if its actions to fix that environment are “clearly unreasonable.”

A Title IX expert, who spoke on condition of anonymity for professional reasons, looked at the document and agreed to only comment on the legal specifics.

She said a school’s options for disciplinary measures depend on multiple factors when dealing with someone in a position like Waters. In this case, she said OSU didn’t have much room to budge.

“When you factor in the scope or depth of the issue, the number of people involved, the potential harm to students, whether someone was honest in an investigation, whether there had been resistance to intervention in the past, considering all of those things, that lessens the (institution’s) discretion,” the Title IX expert said.

OSU’s involvement in a recent Title IX investigation with the U.S. Department of Education also likely diminished its choices, the Title IX expert said.

In May, the U.S. Department of Education released a list of 55 colleges and universities being investigated for their handlings of sexual abuse complaints under Title IX. OSU was one of the schools named, though at the time an OSU spokesman said “no major concerns” had been identified and the review was winding down.

Title IX is a section of the Education Amendments of 1972 that aims to protect against discrimination based on sex in education programs that receive federal funding.

Waters never clearly said whether the document is a sign of impending legal action against the university during a Thursday interview with The Lantern.
“I don’t want to have to sue the university that I love,” Waters said. “I don’t want to have to take legal action. What I want to do is clear the reputations of those students and of me and of the many alums who have come before.”

The document was the latest statement released from Waters’ camp in what seems like a public back-and-forth battle between Waters and OSU.

OSU had released a page-long statement Tuesday refuting claims Waters made during a national media tour that day. During appearances on two national TV shows, Waters said the investigation was flawed and one-sided. He also said he’d like the chance to work with OSU to change the band’s culture.

In response, OSU’s statement said Waters has yet to produce any factual examples that demonstrate any real attempts to change the band culture. It also said Waters failed to follow university policy in reporting known occurrences of sexual harassment.

University policy states employees have five working days to report sexual harassment issues.

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Comments (17)

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  1. Anonymous says:

    The university wants to make us think Waters sexually harassed someone or let it happen, which couldn’t be further from the truth. Shame on them.

    And it’s funny how the university says there are no factual example of correcting the culture when there are hundreds of students who can speak to it. But, oh that’s right, the university only bothered to talk to four (I guess those four are considered “factual”). Hypocrites.

  2. Oh my says:

    Can we get over this? Waters isn’t coming back. Period.

  3. Anonymous says:

    “Our honor defend, so we’ll fight TO THE END.”

    In other words, no we cannot “get over this.” That’s exactly what the administration is hoping will happen while they hide in their offices avoiding the media and public information requests.

  4. Jon says:

    Until Chris Glaros and Michael Drake publicly apologize for directly and falsely accusing thousands of TBDBITL students and alumni of facilitating harassment and assault, there is no way to let it go. These unsubstantiated allegations are incredibly serious and would not be acceptable in a legal setting. The only reason they live on in the public is because Ohio State is playing the part (poorly, I might add) of detective, judge, jury, and executioner in these quasi-legal unregulated settings.

  5. Elaine says:

    Since when do experts speak on anonymity? Isn’t the whole point of getting an experts opinion the fact that you are relying on their credentials?
    Hundreds of current students and recent alumni have written letters to the president and the board of trustees citing specific examples of culture change they experienced, but to date, none of them have received a response that they specifically requested from those letters.
    The university was on the hook for Title 9 infractions, and a misguided mother handed them the scapegoat they needed to prove action to the federal government.

  6. Anonymous says:

    “In response, OSU’s statement said Waters has yet to produce any factual examples that demonstrate any real attempts to change the band culture. It also said Waters failed to follow university policy in reporting known occurrences of sexual harassment.

    University policy states employees have five working days to report sexual harassment issues.”

    Per the mother who sparked this investigation, he was made aware of sexual harassment and reported it within 3 days. The evidence is coming straight from the complainant. Clearly, Jon Waters was following University Policy.

  7. Dave Brumback says:

    Elaine is right. Thanks Logan for a Great article. I do mean that. My only beef is the need to find people who have the courage to stand up for themselves and their opinions. Your article looses credibility when using annonimus “experts”. For all we know your “expert” could have been Dr Drake or Mr Glaros. As long as these ‘experts’ representing the university’s position remain annonimus, the weaker their position becomes. Just sayin.. Keep up the great work!

  8. Matt says:

    Did OSU plan on releasing the report and watching everyone lay down quietly? The TBDBITL alumni are a proud group and will stand up for what is right. No matter how long it takes. Getting tired of it? Look away or put pressure on Drake and the rest of the University to admit their mistake and reinstate Waters.

  9. Melissa says:

    I take issue with the wording,”expected to march in their underwear”. I have seen this phrase before and it is a ridiculous mischaracterization. Participation was OPTIONAL, and many students chose to march in pajamas, sweats, etc. This was not some inspection. If it were a requirement, that might be one thing, but this was simply not the case, and I speak as a former bandsman.I also am not saying that this is something appropriate in this day and age, but I’ll let people look at the mirror lake jump, and other similar activities and come their own conclusions. The above quote is an example of bias and patently untrue.

  10. John Rogers says:

    “Examples listed in the report include an annual band practice in Ohio Stadium that Waters attended where students were expected to march in only their underwear”

    This just isn’t true. SMH.

  11. Anonymous says:

    This whole situation would have played out with Jon receiving clear direction and help to change aspects of the sub-culture being focused on.

    But it was used for political reasons by powerful people. We are starting to see some of those questions asked, which is good, but there needs to be more of it.

    Who benefits from Jon being fired and the band being take back from the Athletic Department and put in the School of Music?

    Somebody clearly intervened. The path forward presented to Jon of having someone assigned was taken off the table, and he was suddenly given the choice to resign or be fired.

    None of how this played out makes sense because it was used for an existing agenda. This needs to be investigated and reported on.

  12. Doug says:

    As one of the thousands of maligned TBDBITL alumni and father of three members of the 2012 and 2013 OSUMB, we will not be “letting it go.” The error filled report accuses me, my sons, and many of my dearest friends of hazing and/or sexually harassing fellow students on a continuous basis for the last several decades. The report contains a great deal of false information. The arguments being applied fall apart when what is false is removed. Therefore any recommendations the report contains and conclusions it reaches are invalidated. So many threads of the argument have been pulled that the report no longer provides any cover for those who have used it to haze and sexually abuse some very fine people over the past two weeks.

  13. Out of the Box says:

    Goodness but there are a lot of loyal Koolaid drinkers here. OSU was completely within its legal rights to get rid of Waters for no reason at all if it so chose. That’s the law in Ohio. If you don’t like it (and I hope you do not), change your major to labor law and work for change. While I aqree that using an anonymous source for expert analysis lacks some credibility (c’mon folks, some journalism student asked a law prof who didn’t want to take sides for or against their employer), what they said is pretty much where things lie. While Waters reported an instance of sexual assault, he had two previous complaints (about co-ed clothing changes on the bus and the harassment complaint in which legal affairs had to intervene to prevent an act of retaliation) which were not duly reported, the failure to follow through when training was recommended to him and lying (or not being “forthcoming”) about yelling and cussing at students. He also failed to report harassment contained in the Trip Tic–which he clearly recognized. This is not a history of cooperation that might warrant some kind of probationary solution.

  14. Michael says:

    Did the “expert” have any comments on the cited 2014 guidance document “Questions and Answers on Title IX and Sexual Violence” (“Questions and Answers”)(OCR, April 2014) where the OCR emphasizes that the Title IX investigation must “include the opportunity for both parties to present witnesses and other evidence.”?

    I think it is pretty clear there was not such an opportunity afforded Mr. Waters.

  15. Wake Up Folks says:

    Waters wasn’t fired in a Title IX proceeding. So he doesn’t get an opportunity to present witnesses. Whatever due process he is due was provided by his contract and that likely was fulfilled by the university who would have consulted legal before they fired him. He was fired because of the risk he generates to the university. Basically his continued employment generates a huge liability of future lawsuits. The university doesn’t want that risk. What’s being said above from the legal expert is pretty consistent with other articles from legal sources, the only one that says different is his lawyer. Ohio State status as one of 55 schools on that watch lists means the university is in a very precarious place. It’s too much risk. He is not coming back. No matter what pressure alumni might bring it doesn’t compare to the bite of multiple lawsuits and a full blown OCR investigation. Sometimes the law and justice don’t match.

  16. apparently you lost the E that I entered today?????????

  17. Anonymous says:

    I find the inconsistency of OSU’s enforcement of university policy appalling! I know of a female employee sexually harassed by an older male staff member in the spring of this year. Her manager failed to report or take action instead blaming the woman for the incidents as he said she was too friendly. She took it to Human Resources and ended up losing her job. That manager is still employed but Mr Waters isn’t? Consistant and fair?

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