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.
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.