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Letter to the editor: Jon Waters’ dismissal was warranted, overdue

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Letter to the editor:

Like the rest of the university, I want an end to this marching band scandal. But I want it without the reinstatement of Jon Waters. As an athletic band member, I, too, was upset at first by his seemingly unwarranted dismissal. But after reading Ohio State’s report, I discovered that his dismissal was, in reality, very warranted — and maybe well overdue. There were three reported instances of sexual assault on female members of the marching and athletic bands. In one case, Waters eventually decided to prohibit the alleged male offender from attending an event — an event where he gave the woman the same punishment but was told by OSU he couldn’t punish her after she reported sexual assault. As a student of the Ohio State University, this is not the type of person I want representing me, or my school, as a Buckeye. So whether the band has a “sexualized culture” is irrelevant to me. Mr. Waters’ decision to inappropriately deal with something so serious as a sexual assault accusation is offensive to my core human values. But in response to that topic, which seems to be gaining the most public interest: clearly the culture was hurtful enough to cause students pain or humiliation in an activity that should be about the satisfaction of the hard work put in day in and day out. I understand the value of tradition, but if these traditions are detrimental to the well-being of even one person, is that really something you want to stand up for? I further understand that Mr. Waters was making some efforts to improve this culture, and I truly appreciate it. I wish he had done more. But this is the beginning of a long journey that the marching band is only just starting. And a captain always goes down with his ship.

I don’t doubt that there were good reasons for Jon Waters’ actions — or lack thereof — but unfortunately when you’re in a position of power and in view of the public eye, you just can’t afford to make such large mistakes. He and his successful contributions will always be ingrained in one era of The Best Damn Band in the Land, but for now, I think it’s time we thank him for what he taught us and move into our next era.

Emily Rees
Athletic Band member who plays trombone
Third-year in religious studies and Russian
rees.105@osu.edu

186 comments

  1. Dear Emily,

    Please do not base your opinions on the false and misleading salaciousness launched into the media by this crew that has hijacked our university. What you are experiencing is a good lesson in Propoganda 101. Propaganda always peppers lies with enough truth to sound credible on the surface. That is why it is used so often by dictatorial regimes to attempt to sway public opinion. If we are to maintain our Republic, we must be vigilant in exposing these lies, otherwise, we become little more than a Banana Republic university. You seem like a fair person trying to listen to all sides. But remember, wolves wearing sheep’s clothing should not be given the time of day. Your benefit of the doubt merely gives them more space to do their dirty work.

    OSU Alum if the Buckeye Bands too

  2. Emily,
    I fully respect your opinion, but I’m not sure how much you have gathered from the full picture. The truth about the dismissal of the female member from trips was not Jon’s decision. Upon hearing about what happened on the trip (which I believe he was not on), he turned it to athletics and THEY instructed him to dismiss them both. For you having been in athletic band, I’m sure you are aware of how athletics mistreats the ensemble; I have been involved with A-band myself, so I’ve seen a lot of it first hand. I’m sure you remember how athletics would not pay to send an ensemble to the hockey tournament in Milwaukee. In addition they prefer to play canned music at athletic events where a band is in attendance. In addition, at least one of the “assault” cases (March 2012, I believe) was originally ruled as harassment; the university changed the word recently to make people more horrified. No, that does not make it okay, but it’s just the fact. No one knows the circumstances of that particular incident, so it’s hard to really form an opinion about it.
    Your opinion is your opinion. I just want you to be fully informed, because I think you have been misled.

  3. “but unfortunately when you’re in a position of power and in view of the public eye, you just can’t afford to make such large mistakes.”

    Jon Waters was praised for his handling of these cases. Ohio State was found to in violation of Title IX by federal investigators. If university officials cared at all about students, OSU would report crimes to the authorities and provide counseling and legal resources to support the victims. Not to mention that their response to this situation continues to be direct slander of Jon and students. Rather than address OSU’s well-known shortcomings, these individuals choose to wage a public and dirty war against Jon and the band, hoping their twisted truth would prevent anyone from looking too closely at their own misdeeds. You have proven that there are people who won’t see through this farce.

  4. Weren’t they both violating policy and procedure by being in the room of a person of opposite gender and that is why they were both originally to be punished?
    Do you really think students would stay in an organization for 3,4 and 5 years if the “culture was hurtful enough to cause students pain or humiliation”?
    How many rape cases have been reported on campus this fall-maybe it’s not the band culture,but the culture on campus and in society. Maybe Jon Waters isn’t responsible for what students are doing on their own time,but students should be held accountable for their own decisions. If someone is raped rather than go the the band director they should go to the police so they can collect evidence and file charges.

  5. She’s just jealous that she only made A-Band.

  6. And there you have it Josh. There was a nice respectful conversation going on among adults and you just had to jump in.

  7. Josh, there are lots of members of Athletic Band who never even try out for the marching band. Don’t assume someone is butthurt just because they play a brass instrument at Ohio State and aren’t a member of TBDBITL.
    As to the fact that she doesn’t have her facts straight (i.e. Jon was much better at handling sexual assault cases than the university itself), you can probably pin that on the university’s willful distortion of facts, as well as the media twisting and exaggerating the university’s presentation of said “facts.”

  8. Emily,

    The US Office of Civil Rights (OCR) investigated 87 cases of sexual assault that occurred at Ohio State University from the beginning of the 2008/2009 school year to the end of the 2009/2010 school year. The OCR found that the majority of those cases were routinely mishandled.

    Jon Waters was director of the OSUMB for two years (assuming you include his time as “interim director”), and during that time three cases of sexual assault occurred involving band members, and unlike the 87 cases from the time period above, there is no evidence that he mishandled any of the cases. The decision to keep the victim in one incident from traveling with the band to March Madness was NOT his decision.

    I would hope that you are consistent with the application of your logic, and want heads to roll regarding the 87 mishandled cases of sexual assault the OCR found, and leave Jon alone for the 3 cases he handled properly.

    Because what has happened is OSU found the highest profile “at will” employee at the university, and made him the “scapegoat” as part of a 10 point bargain with the OCR to avoid being sued for the mishandling of the 87 cases, and as such losing millions in federal funding.

  9. Dear Emily,
    If the report which was used as the reason to fire Jon Waters was accurate, I’d feel as you do. I really, really encourage you to read the entire TBDBITL Alumni report, which is about four times as long as the Glaros report and carefully documents everything it got wrong. As a member of A Band and OSU, please realize that you are being slandered along with Jon. The distortions and outright lies in this report sully the name of all OSU bands and the entirety of Ohio State.

  10. I second Josh — she didn’t make the marching band and this is a perfect opportunity to vent her anger.

    Look as the girl that originally came forward – she wasn’t in the marching band.

    Instead of venting – get back out on the field, work on your 8X5, turn your corners square and audition again. Thousands of people have tried out, got cut, and then came back and made the band.

    Stop your whining –

    Oh and PS – don’t tryout for the marching band. You left you name in your letter and I’m sure the band doesn’t want a whiner like you – that’s unable to deal with personal failure — in the band. Thx

  11. Emily, I do agree that some of the actions needed to be corrected! However I do disagree that Jon Waters should be the scapegoat for many decades! When young men and women go to college, they are young adults and responsible for their actions. Many of the sexual actions are consensual and when students are drinking they do get involved where they do not belong, but under the influence changes your judgement. Let me tell you that things go on in all college bands, performing groups and the individuals need to take responsibility and man up! Jon Waters is one of the most awesome, straight-laced men in the world. He cannot do the “change” alone and since several in the School of Music hated him out of jealously he had little support! No matter what, no human being deserves the treatment Jon has received since his firing. OSU is mean and malicious and looks very foolish nationwide for the way they have handled the entire situation. Knifing Jon in the back and chest will not help the band situation and the band will NEVER be the same. Shame on all of you (OSU Admin) for your lack of professionalism and courtesy!

    Maurine Strom

  12. Anyone who thinks that bashing this girl for her opinions obviously doesn’t align themselves with Jon Waters’ ideals. If you honestly think that telling this girl to work on her 8-to-5 is an appropriate reaction, please step away from the keyboard until you gain a conscience.

  13. Woah Josh and TBDBITL Alumni. Don’t be harsh. I was in Athletic Band for two years before I made it in the marching band. Not every brass player who does A band is or was a marching band candidate. She’s probably just not as involved and therefore susceptible to the university’s propaganda. Chill out and just focus on the facts.

  14. Dear Josh and TBDBITL,

    Your disparaging comments are not helping. If you are OSUMB alumni, I am ashamed. As OSUMB members, we take an oath to maintain a good public image. Any actions of an individual reflect on the entire group. Whether or not this athletic band member tried out for the marching band is irrelevant. Let’s focus on spreading facts instead of tearing people down.

    Emily, you should not feel bad for speaking your opinion. However, I do feel you lack important information regarding this case. Like many have said, I would encourage you to read the alumni club report. Unfortunately, OSU and much of the media has distorted and mischaracterized much of the information regarding this case.

  15. Emily,

    When the OSUMB student leaders met with President Drake, he admitted he did not believe the report was about the current students, and he was going to make a public statement within a week in support of the fine students of the current band. He lied to them, and the lies continue from the Task Force all the way to Mr. Wadsworth. Rob has it exactly right, that your application of logic should be to have heads roll about OSU’s pact with the Dept. of Education/OCR to dismiss the 87 mishandled cases of sexual assault, since 2008, none of which were about the Band. OSU leadership’s public slander and libel of the current and former members of the Band, and of Jon Waters, is how they are deflecting attention from this egregious pact with OCR. It worked with you. Your Russian studies should give you some insight; the handling of this case from the concocted Glaros report to now is unAmerican.

  16. TBDBITL Alumni:

    Victim shaming is not pretty, and it certainly does nothing to support the illusion that there was nothing wrong with the culture of the band.

    At this point, a court of law will render a decision with regard to the veracity of the University investigation. That is IF Waters can get past the hurdle of establishing that he had rights that were violated–which is likely to be a steep climb, and seems to rest entirely on his ability to prove a pattern of discrimination by the University against males.

    I still believe that the court will determine that the University was well within its rights to fire Waters, with or without cause.

    In the meantime it is unfortunate that TBDBITL Alums–an overwhelmingly male organization–has chosen to make light of the real issues of gender-based harassment and assault.

  17. As a TBDBITL Alumnus, I’m shocked by the comments of this so called “TBDBITL Alumi.” I’m also saddened by the commenter “Josh” trying to attribute this to having anything to do with jealousy. Sexual assault is sexual assault and needs to be taken very seriously. I’m quite certain that those feelings are NOT representative of the feelings of TBDBITL Alumni members as a whole. All one needs to do is read the TBDBITL Alumni Club’s Investigative report to learn the truth. http://tbdbitl.com/ICR/TBDBITL_Investigative_Committee_Report_9-12-14_11_AM.pdf

    Furthermore – it’s a shame that ANYONE can get on here and claim they’re a TBDBITL alum – even if they’re not, to try to make the band look bad. I’m not saying that’s what’s going on here. But I know for a fact that the hearts and souls of TBDBITL Alumni do NOT feel the same way as these rogue commenters above.

    Victim blaming/shaming is NEVER appropriate. And that brings me to my point to address the author, Emily. It is my understanding that the decision to remove both students from the trip/band was due to them violating a rule. That rule states that male/female members may NOT be in the same room together. It’s also my understanding that, upon learning of this assault, the matter was passed up the chain and was NOT his decision. The University does not want you to believe this. They’d rather have you believe that Waters was blaming the victim by removing her from the band. In reality – that decision was made above Jon Waters’s head.

    There are MANY things that the University has exaggerated, taken out of context, or in some instances, flat-out lied about in regards to this story. There are thousands of witnesses to back this up. To claim that thousands of former band members were victims of “Stockholm Syndrome” and simply didn’t realize that they were being harassed and or harassing others is insulting.

    There are some people that are going to take the University’s word for it rather than look at the actual facts (see the link above). I encourage you all – even if you’re convinced that this so-called “sexualized culture” existed and Jon had something to do with it – to read the TBDBITL Alumni Club’s report linked above to read both sides of the story.

  18. Rob–that is absolutely shocking! You have proof no doubt of this 10 point agreement and the imminent removal of federal funds (a penalty which has never yet been implemented in ANY Title IX case in the country)?

    Curious, isn’t it, that OSU would request the Title IX investigation 4 years ago, and that the OCR would state publically that the investigation was not spurred by an accusation of wrong-doing?

  19. Real TBDBITL alumni

    Dear Josh and TBDBITL,

    Drake…..Chris Davey….is that you?

  20. Emily Rees I’m sorry that you’ve been so manipulated by the University, which you obviously trust.

    Ohio State has NEVER alleged that Jon Waters mishandled ANY case of assault or harassment in his duties. But they intentionally create this impression to manipulate people who are not closely observing this case. People like you Emily. And the point you’ve brought up is one perfect example of how they do this. Essentially, there was a CLAIM that Waters retaliated, a claim that was false. But by repeatedly mentioning this claim without offering the full context, they create the impression that this is in fact what happened without ever saying it explicitly.

    If you read paragraph labelled 3 of their latest filing against Jon Waters, it appears to back up your claims: “Defendants also state that on May 22, 2014, a female Band member and her parent claimed Mr. Waters had retaliated against her for reporting a sexual assault by a male Band member.” However, if you continue reading in the paragraph labelled as 4 you then find out that “Mr. Glaros … oversaw the part of the Title IX investigation relating to the claim of retaliation lodged against Mr. Waters, which did not find evidence to substantiate the claim of retaliation.”

    That’s buried in there, but the guy who produced this damning report against the band in the first place could find no evidence of retaliation. I can only offer you a second hand account of what really happened, but apparently the claim of harassment included a confession that both students had been drinking in their hotel rooms during this trip, and Waters correctly enforced band policy, prohibiting them from future trips in that season.

    In March 2013, a student made a claim of sexual harassment (note that OSU’s initial investigation refers to this as a harassment claim, while their new filing calls the same claim an assault). This occurred during a basketball band trip, in a hotel room paid for by OSU, in which band policy prohibited drinking. Both students had been drinking and as part of this claim, this became clear. Band policy was properly applied, and both students were prohibited from attending future games during the tournament. OSU came in and overrode his decision, because they were concerned that this could APPEAR to be retaliation, even though his decision was sound. I’ve also heard that Waters was praised at the time for correctly handling the situation.

    So I am saying that OSU is lying because they are fully aware of the facts of the case, and yet the continually try and manipulate people like you Emily, and others, with out-of-context statements about this case that are clearly intended to create a false impression, also known as lying.

    Another example of this can be found in paragraph 51, which says “Mr. Waters’ decision was to punish both the female and male members by preventing them from traveling on a Band trip. Ohio State’s Office of Legal Affairs and the Compliance Office had to intervene to prevent Mr. Waters from punishing this female student for reporting sexual assault, in clear contravention of Title IX.” Without the full context this sounds terrible, but the real context is that Waters did his job correctly, Compliance did their job correctly, and that’s how the system is intended to work.

    In the same document, in the Preliminary Statement, item 11.b. they repeat this exact same claim.

    Let me reiterate that ALL of this “punish the student” and “retaliation” nonsense is the EXACT SAME CASE in which Chris Glaros found no evidence of retaliation. Ohio State knows all of this. They know there was no retaliation. They know the punishment selected was based on correctly handled band policies. They know he did nothing wrong here. And yet they keep mentioning only those aspects of this situation that make it sound like he did something wrong, while leaving out the fact that THEY KNOW HE DID NOT DO ANYTHING WRONG.

    This is how they have lied to you Emily. This is how they have lied to everyone. Emily, I strongly urge you to carefully read over all the documentation from Ohio State, because they use this strategy repeatedly. Everyone thinks Waters lied. Ohio State has never explicitly said that Waters lied. They can say he was “untruthful” (which includes any statement that was a simple mistake). They talk about his dishonesty, which is a vague character assassination and includes no specific claim of lying. They’ve never actually claimed he lied because they’ve never caught him in a lie.

    Isn’t it odd that Ohio State is afraid to explicitly claim that Jon Waters lied, and I’m completely comfortable explicitly claiming that Ohio State has lied?

    Over and over again Ohio State uses this same strategy. Look closely at what they’re saying, because all they’re really doing is slandering Waters and the band without proving anything. I hope you take the time to do this. Because this is why the band alumni are so outraged, still to this day. This is why we won’t let go.

    Emily, I hope you look at the facts and submit a retraction. I’m sorry you’ve been manipulated by the University you trust and love.

  21. Josh, you have no proof that Emily tried out for the marching band or ever had a desire to and frankly that makes no difference to me. TBDBITL Alumni, your comment is equally confusing and irrelevant.

    Sexual assault is not a laughing matter. As the father of two daughters I would fear for the safety of any person who even thought of sexually assaulting either one of them.

    The “Glaros” report states that there was a sexualized culture that facilitated acts of sexual harassment creating a hostile environment for students and that Jon failed to eliminate the sexual harassment, prevent its recurrence and address its effects.

    This conclusion was based on the interviews of 4 current band members and 4 alumni. With over 225 current members and thousands of alumni, statistics would tell you that this sample size is not adequate to make a judgment about the culture of the band.

    If you simply want to fire any instructor who has a case of sexual harassment or assault reported against one of their students (at least one case occurred off campus at a party) then many other professors should be dismissed too.

    I do not believe in the conclusions of the Glaros report and if these conclusions were the basis for Jon’s termination I do not believe he should have been terminated either.

    So Emily Rees, I question your conclusion that Jon Waters handled the reported instances of sexual assault improperly and I question the conclusion of the Glaros report that there was a sexualized culture that facilitated acts of sexual harassment creating a hostile environment for students and that Jon failed to eliminate the sexual harassment, prevent its recurrence and address its effects.

  22. Interesting too, that Out of the Box is using a similar strategy to OSU. Hey Out of the box, here is the evidence that rob was talking about. http://www2.ed.gov/documents/press-releases/ohio-state-letter.pdf

    It talks about the 87 cases rob mentioned, and it clearly links the band to the deal that the DoE made to end the investigation. I’m not sure why Out of the Box is claiming that OSU initiated this investigation, as I’ve never seen that anywhere. My understanding is that it was an investigation started by the DoE at the secretary’s (of the DoE) discretion. Presumably based on unofficial information she had at the time but that’s just a guess.

    Of course I’m not sure why you even brought that up Out of the Box, as Rob hadn’t made any claim about the beginning of the investigation in the first place.

    Let me ask this explicitly. Out of the Box, are you a sock puppet for any department or subcontractor of Ohio State?

  23. Since Out of the Box raised the issue of the history of the investigation let me bring a bit more to light:

    On June 23 2010, The Department of Education (DoE) notified OSU that they were being investigated. Early responses from the DoE indicated that the review was going well for Ohio State. However at some point problems were found, relating to the mishandling of those 87 cases mentioned in the OSU resolution agreement letter.

    On May 1 2014, it was made public that Ohio State was being investigated by the DoE, along with 50+ other institutions.
    On May 23 2014, two different parents of marching or athletic band students brought allegations relating to the band culture to the attention of the Compliance department, based on cases that were seven and fourteen months old.
    On July 22 2014, OSU finishes it’s report. This is exactly 60 days after the initial complaint and by coincidence 60 days is the time period that DoE recommends for handling of these cases.
    On September 11 2014, DoE releases their resolution agreement, which includes many band-related action items. Oddly though, many of these action items were clearly already underway as early as the beginning of August 2014. One could interpret this to mean that OSU knew generally what the agreement would require at the time they fired Jon Waters.

    So to review, two parents show up on the same day with the same allegation, based on months old incidents, which ultimately leads to an agreement with the DoE. An agreement that the DoE acknowledges is related to the university’s handling of the band situation, and which explicitly says that because of this new deal they will not look at the details of those 87 old and apparently mishandled cases.

  24. A-Band Trombone Alum

    Josh and TBDBITL Alumni, this is the type of attitude that is a BIG problem with this band program. Someone is in the Athletic Band so they must not have been good enough for the Marching Band? Some people choose Athletic Band over the Marching Band because it’s a less stressful environment where they can keep doing what they enjoy without the constant pressure that comes with being TBDBITL. Call me bias if you want, but the Athletic Band has hundreds of talented musicians who can try out for the Marching Band and earn a spot, don’t piss them off so much that they try to take yours.

    Emily, I don’t know if you read these comments, but as many have pointed out, your views seems to be entirely based on the University’s words. You mentioned Jon not being the type of person you want to represent you or your school, but look at everything the University has done so far. Publicizing a report (Glaros) that was poorly written and eventually proven to be inaccurate. They misquoted witnesses and also publicized the names of “victims” without speaking with them first. This alone allowed so many band members to be harassed even though they were innocent. Recently, they publicized NUDE photos of band members. Is that okay to you? Do you want to be represented by a University that would publicly humiliate its students like that? I want you to think about this, I, an Athletic Band Trombone member was asked by co-workers about the band I was in the day Jon was fired. Fact is, not everyone understands that these are two different bands. The report might be directed at the Marching Band, but Athletic Band members aren’t safe either. The University attacked all of us. I won’t try to change your mind about Jon, but think about what the University has done and look at who’s really causing a “sexualized culture”.

  25. OSUMB Alum (female, 70's)

    Emily certainly has a right to express her opinion as does everyone, however our opinions are defined as “a personal perspective, feeling, or attitude about or toward a person, situation, or idea”. An opinion is not a fact. It seems that the actual facts are unclear for many reasons. Some of the events in question take place over a stretch of years, involving several different OSUMB directors and assisting staff, and incidents some of which are clouded by time and memory. What is paramount right now, and the real issues; were Jon’s rights violated by his termination, did he receive due process that is protected, and why did the Glaros report carry such weight when no one bothered to interview people who were mentioned in it, in which they were not consulted for substantiation. When those mentioned stepped up to refute the report, they were not given THEIR rights to challenge what was reported. FACT: Jon was the interim director after Jon Woods’ retirement, and was moved to “director” by Gordon Gee during just last year’s marching band season. Right there seems to be one source of the problem because apparently, certain folks at the School of Music didn’t like “their decision” to be taken away from them by the university president. Possibly, when Gordon Gee fell out of favor and subsequently left OSU it was an opportunity to revisit that decision. I believe that Michael Drake was thrown under the bus with bad information and poor guidance to make a firing decision by those who were driven by another agenda! Jon Waters brought more innovation, attention, and enthusiastic support to the band and university in the last two years than could have been imagined! What I personally want to see is a full-blown court case where documented FACTS are presented, key players give testimony under oath, and all of the legal rights are considered. Let the university pay for Jon’s legal expenses, too. The university and the Board of Trustees completely underestimated the support and passion that OSUMB members/alumni AND that of thousands other OSU band fans have demonstrated for our band & Jon Waters. We are strong and are NOT going away. In any case, let OSU feel the deep impact of millions of dollars of withheld financial support they would normally have received (that MIGHT get their attention). It takes courage to admit a mistake. Ohio State can either do that, or suffer the $$ consequences for years to come. We Stand for Jon Waters. Our Honor Defend! And quite honestly, it is OUR (collective) HONOR that we are here to support and defend. Seriously, WHO thought that those words would come to mean what they mean now? Oh, and BTW, much of the above is MY OPINION! And I approve this message!

  26. This is addressed to Out of the Box

    I am not sure where you get that anyone is “victim shaming”. I can tell you for a fact that the TBDBITL Alumni Club supports any and all efforts to eliminate sexual assault and, when assaults do occur, to handle all of them in accordance with University rules, policies and procedures and the law.

    As the University is now claiming that Mr. Waters was an at will employee it may be unlikely that a court in his lawsuit will ever be required to determine the validity of the “Glaros” report. However, I firmly believe that the TBDBITL Alumni, individually and through its Alumni organization will continue to fervently deny that the culture that the report described did not exist.

    I do not believe there was a sufficient investigation to determine if a culture existed. The interviews of 4 current and 4 or 5 former members, most of whom were recommended by the complainant and many of whom have already come forward to say that either what they said to the investigators was misinterpreted or taken out of context, not used at all if it was in favor or Mr. Waters or simply not what they said.

    That is not to say that there may not have been several isolated incidents but it is my belief, based on the reports, that these isolated incidents were handled appropriately by Mr. Waters.

  27. My goodness, Mr. Fine. What a fine job you have done of patting little Emily on the head and sending her on her way. Nothing to see here–don’t you worry your pretty little head about it, you poor thing. Leave the thinking to us men folks, OK, honey. You’ll just get all confused if you listen to those big, bad University folks.

    The fact of the matter is that there was no evidence of retaliation in the investigative report because the University intervened as noted in the report, and the complainant was NOT barred from the next trip. You may recall that other specifics were recommended at that time, but not followed up on. Apparently they thought it might be helpful for Waters to have a clearer understanding of some of the finer points, such as what retaliation might look like and how the threat of punishment for wrong-doing (like drinking) might inhibit the reporting of assaults. And the FACT is that Waters did not follow up. He was also provided an opportunity to provide investigators with an accounting of what he DID do in terms of training and change management. He appears (based on email documentation) to have thumbed his nose at them, not submitting such (claiming a computer malfunction) on time, and later submitting a document (yes–I have read it) wholly lacking in detail with regard to some critical pieces such as the syllabi, trainer, or even the hours of training provided to the student leaders. And no accounting for any changes in policy or practice.

    These things are facts, supported by documentation.

    Your conjecture about an agreement between OSU and OCR–hinging upon throwing Waters under the bus, however, remains just that, conjecture. And for the record, the investigative report recommended strengthening leadership of the band–which could have been acted upon in a variety of ways. The University picked one–and were well within their rights in so doing.

  28. I find it interesting that Mr. Fine and I (and Emily) have no problem using our real names yet Mr. or Mrs. or Miss Out of the Box feels necessary to hide their true identity.

  29. Lawrence Cohen–if you have not already done so, please read the Compliance Office report, as well as the recent court filing by the University. The report included a good deal more than interviews with a few students. There were also interviews with staff and the examination of documents.

    As far as victim shaming is concerned, this is what TBDBITL Alumni posted: “she didn’t make the marching band and this is a perfect opportunity to vent her anger.

    Look as the girl that originally came forward – she wasn’t in the marching band.

    Instead of venting – get back out on the field, work on your 8X5, turn your corners square and audition again. Thousands of people have tried out, got cut, and then came back and made the band.”

    I have heard this before–that one of the assault victims wasn’t in the Marching Band, but in the activity band–as if that is somehow a critical difference. And to further suggest that the reason for coming forward had to do with jealousy of those who go it–well, this would be victim shaming. And there has been plenty to go around.

  30. Out of the Box I am convinced that you are a sock puppet for Ohio State. You have misdirected with almost everything you’ve posted. “patting little Emily on the head and sending her on her way.” Seriously of the two of us, you are the one that has condescended. I did not send her on her way, I asked that she stay and take a closer look. it is you that is attempting to alienate people, and lend your bias to our words. I welcome further scrutiny. You welcome emotion and rush to judgement. These are very typical tactics of PR campaigns.

    Please identify yourself and your affiliations, or henceforth I will simply treat you like the OSU PR representative that you seem to be.

    To clarify, this is my real name. I obtained a degree, as well as several years of full employment at Ohio State where I was a member of the band from 1986 to 1990. I am participating in the defense of the band and Jon Waters without any compensation. Nor are my actions being directed by anyone else.

  31. Out of the Box wrote: “I have heard this before–that one of the assault victims wasn’t in the Marching Band, but in the activity band–as if that is somehow a critical difference.”

    Yes Out of the box, it is a critical difference. Jon Waters was NOT fired for handling of sexual harassment and assault. He was fired for the sexualized culture of the MARCHING band. That’s why it matters.

    As for those attacking Emily, they do not speak for me. And they are also using anonymous identification. Another tried-and-true PR strategy is to run sock puppet accounts that appear to advocate for the other side, while actually causing damage to that side. That’s entirely possible in this case.

  32. As a TBDBITL Alumnus, I’m shocked by the comments of this so called “TBDBITL Alumi” commenter. I’m also saddened by the commenter “Josh” trying to attribute this to having anything to do with jealousy. Sexual assault is sexual assault and needs to be taken very seriously. I’m quite certain that those feelings are NOT representative of the feelings of TBDBITL Alumni members as a whole. All one needs to do is read the TBDBITL Alumni Club’s Investigative report to learn the truth. This is found on the TBDBITL Alumni Club’s website.

    Furthermore – it’s a shame that ANYONE can get on here and claim they’re a TBDBITL alum – even if they’re not, to try to make the band look bad. I’m not saying that’s what’s going on here. But I know for a fact that the hearts and souls of TBDBITL Alumni do NOT feel the same way as these rogue commenters above. Please note I am using my real name and will openly disclose my relationship to the matter. I am a TBDBITL Alum from 1998-2001. I encourage other commenters to do the same (I’m thinking there are some commenters that won’t).

    Victim blaming/shaming is NEVER appropriate. And that brings me to my point to address the author, Emily. It is my understanding that the decision to remove both students from the trip/band was due to them violating a rule. That rule states that male/female members may NOT be in the same room together. It’s also my understanding that, upon learning of this assault, the matter was passed up the chain and was NOT his decision. The University does not want you to believe this. They’d rather have you believe that Waters was blaming the victim by removing her from the band. In reality – that decision was made above Jon Waters’s head.

    There are MANY things that the University has exaggerated, taken out of context, or in some instances, flat-out lied about in regards to this story. There are thousands of witnesses to back this up. To claim that thousands of former band members were victims of “Stockholm Syndrome” and simply didn’t realize that they were being harassed and or harassing others is insulting.

    There are some people that are going to take the University’s word for it rather than look at the actual facts. I encourage you all – even if you’re convinced that this so-called “sexualized culture” existed and Jon had something to do with it – to read the TBDBITL Alumni Club’s report referenced above to read both sides of the story.

  33. Also Out of the Box claims that I’m just guessing about the link between the band, and the closure of the investigation. This is the first paragraph of page two of the Letter to Michael Drake that accompanied the resolution agreement (this letter can be found by googling “letter docket 15-10-6002 pdf”):

    During the course of this compliance review, the University conducted an investigation of alleged sexual harassment within its Marching Band and found that there was a sexually hostile environment for students in the Marching Band of which the University had notice and failed to adequately address. The University requested to resolve the review with a resolution agreement prior to the completion of OCR’s investigation of all the issues in the review. As such, OCR is not making any further compliance determinations under Title IX, including whether the University has complied with the Title IX requirements for the prompt and equitable resolution of sexual harassment and sexual violence complaints in the implementation of its sexual harassment policies and procedures. On September 8, 2014, the University signed the enclosed resolution agreement (the Agreement), which when fully implemented, will address all of the issues in this compliance review. OCR incorporates in the Resolution Agreement the University’s own corrective action steps for the Marching Band as requirements.

  34. Out of the Box, who are you and why are you afraid to use your real name?

  35. @Out of the Box – Here is a link to the agreement between OSU and the US Office of Civil Rights: http://www2.ed.gov/documents/press-releases/ohio-state-letter.pdf

    The agreement is an out of court resolution to the mishandling of the 87 sexual assault cases in began investigation in 2010. Pages 27 to 29 list the 10 points OSU must accomplish to the agreement. The 10th point requires OSU to implement OSUs recommendations and corrective actions from its investigative report pertaining to the Marching Band.

    In the paragraph following the 10th item on page 29, its states that if OSU fails to implement the Agreement, the US Office of Civil Rights may initiate judicial proceedings.

    If this goes to court, it will cost OSU millions.

  36. Mike Lutz OSUMB 1972-78

    To those making stupid remarks about jealousy, etc.
    You are not true alums of the band, let alone tOSU. Emily is misinformed….many here have tried to correct that. Out of the box. I agree, you have been outed….pres drake, you should be ashamed! Trying to malign these fine men and women of TBDBITL by creating a fake name.
    The members and former members of the marching band do not condone sexual harassment or assault. But I do admit that college students make stupid decisions. Their leaders/teachers should not be held accountable for their actions off campus. The firing of Jonathan waters was and is ludicrous! No chance to be under “probation” etc.? Just fire=ODE goes away. He’s a scapegoat, and the reaction of the university is juvenile.

  37. I choose to post anonymously because, unlike Mr. Cohen, Mr. Fine, Mr. Kent and some others, I have a fairly unique name, easily recognizable and I prefer not to invite cyber stalkers by revealing it. You can believe me or not believe me, I don’t care. But the issue of anonymity never seems to come up until someone wants to dismiss my arguments.

    At this point the sky-high level of denial on the part of those who identify with the TBDBITL alums (meaning those formally affiliated–as distinct from what is certainly a larger group of folks who once participated but have moved on to other life activities and priorities) has become amusing, if not classically text-book. Emily is misinformed, I am an OSU PR person, the anonymous alums who make you look bad are just sock puppets and everything that the University says is simply untrue.

    With regard to the federal investigation of the University–yes, I am aware (having read the agreement when it was announced) of the reference to the band culture investigation and how it was handled. What I am calling into question is the claim that firing Waters was somehow the linchpin needed to send the feds back home.

  38. @Out of the Box… I posted a reply that provides that information. However because it includes a link to the document, the post is awaiting moderation.

    Once the post with the link is approved, you will see that the agreement is an out of court resolution to the mishandling of the 87 sexual assault cases in began investigation in 2010. Pages 27 to 29 list the 10 points OSU must accomplish to the agreement. The 10th point requires OSU to implement OSUs recommendations and corrective actions from its investigative report pertaining to the Marching Band.

    The marching band had NOTHING to do with the 87 sexual assault cases during the 2008/2009 and 2009/2010 school years that were investigated by the OCR. However, the OCR and OSU agreed as part of their negotiation to keep the resolution out of court to add the OSUMB issue as the 10th and final point of the agreement.

  39. I suppose at this point it really does not matter who you are since you have confirmed, as we suspected, that you are an employee of the University and posting on their behalf in a public relations context. I suppose I could make a public records request for all the names of authorized PR representatives of the University and any screen names they have used on the Lantern website.

  40. No, Mr. Cohen–you misunderstand. I was not claiming to be a U PR rep, merely restated that among a number of claims having been made by some of your true believers.

    Rob–I will reiterate, the Compliance Office report did not mandate, or even suggest, the firing of Jon Waters. It suggested strengthening the Band leadership. The University has provided its own reasons for the firing–that Waters knew or should have known of many of the ongoing activities contributing to band culture, and that he was less than cooperative (not forthcoming) with the investigation.

    The Compliance Office actions did figure into the final outcome of the federal investigation, however, by offering a working example of not only the existence of appropriate policies but also their enactment. IOW–a complaint was received, it was investigated and findings issued. The University acted on the findings.

  41. @Out of the Box – here is the 10th point of the out of court settlement agreement between OSU and the US Office of Civil Rights:

    “10 Implement the University’s recommendations and corrective actions from its investigative report pertaining to the Marching Band, which have been specifically incorporated into the Agreement. Submit to OCR for review and approval (1) its proposed timetable for implementing the steps outlined in the report and any additional proposed recommendations and findings, and (2) the specific individual remedies that OSU proposes to provide to individual band members subjected to the sexually hostile environment, including the basis and timetable for providing the remedies.”

    The “which have been specifically incorporated into the Agreement” is referring to pages 20 and 21 of the Agreement where it states OSU fired Jon Waters as a corrective action.

    The firing of Jon Waters is “specifically incorporated into the Agreement” and as such is a legal requirement of OSU in order to be in compliance. Failure to do so is a violation of the 10th item, which according to page 29 would allow the US Office of Civil Rights to initiate judicial proceedings, which would cost OSU millions by losing federal funding for Title IX violations.

  42. Everyone,
    Thank you for all or your responses—I knew there would be backlash from this article, but I appreciate that you’re standing up for what you believe in, just as I am. To a couple points that have been brought up here…

    Regardless of if students were drunk or if they weren’t, sexual assault (or harassment) charges were still filed. No, neither student should have been drinking, but the variable of alcohol does not justify sexual assault, nor does it invalidate it as criminal.

    Yes, Jon was taking some measures to eliminate possible discomfort for students by trying to avoid sexual rookie names and whatever action they may have to do in accompaniment. As I stated—and I truly mean this—I’m greatly appreciative of this because it could have improved the culture for just one person, which is counted as a win. No one was expecting him to change the culture overnight. But there were changes he should have made.

    The sample size was small, but again, I believe that if they were the only people in the bands with their beliefs, it is still significant. There is acknowledged evidence of misconduct; there wouldn’t have been an investigation otherwise. When I stated that there was clearly a hurtful enough culture to cause students pain, this is what I meant. It may not have been many, but why should we wait for more people to get hurt when we can work toward preventing it altogether?

    We can argue all day about the validity of the report, but until we have more evidence, I don’t think any side will do much convincing the other. I have faith that OSU did what they were legally obligated to do. The idea of a vendetta of some sort against Waters doesn’t make much sense to me—I don’t know exactly what the university would get out of it. I very easily could be proven wrong, but for now I’m just deciding on which seems more logical to me.

    With regard to the previous mishandling of sexual assault cases, yes of course that is infuriating to me. I’m embarrassed for my school—but hopeful, as they are making progress. If OSU chose not to address the band issue, we would—and if that were the case, should—have been in trouble. Because of this, the university paid closer attention to such allegations and took action when they saw red flags. And I think that should be commended, not instantly berated.

    Apparently, it’s left to the courts at this point. I am not trying to make Jon out to be a bad guy, I’m just voicing my opinion on how he handled certain aspects of his job. No one can deny the OSUMB thrived under his leadership. But I think the OSUMB can do that on their own.

  43. To be clear Emily I had no intention of using the alcohol to justify any assault. My point is that the alcohol is allegedly the reason why BOTH students were punished, which is totally acceptable. Given that OSU acknowledges that there was NO retaliation against her by Waters, it’s very disturbing to me that they continue to refer to the CLAIM of retaliation without clarifying that, and they continue to talk about the punishment that was given, without describing the context.

    To me, this is Ohio State lying about what happened. You cited your acceptance of this lie as a primary reason for deciding that the firing was deserved. In other words, your argument was predicated on a falsehood, and this is what I was writing about it. I hope this clarifies that.

    Thank you for your willingness to discuss this here.

  44. Rob: re: “Implement the University’s recommendations and corrective actions from its investigative report pertaining to the Marching Band, which have been specifically incorporated into the Agreement. Submit to OCR for review and approval” If you read the recommendations in the Compliance Office Report, you will not see any reference made to the firing of Jon Waters. It speaks to strengthening the leadership. Again, the University chose how to go about this. I still see nothing more than conjecture that this was a quid pro quo with the Office of Civil Rights. Further, while there has always been a spectre of the removal of federal funds for failure to follow federal law (imagine that!), the practice has long been to work with states on the creation of action plans to bring policies and practices into line–which is, of course, the point after all.

    And if doubt Waters’ capacity for scoffing at such things, consider the irony of attempting to use Title IX to a claim of entitlement based on his status as a male.

  45. Anyone who comments on this article is clearly an idiot.

  46. Dear Out of the Box,

    I will not even try to reiterate how many incorrect points you have made in all articles pertaining to this subject. I can see that plenty of people here already have. All I would like to say to you is to PLEASE stop claiming this entire scandal as a matter of gender issues and misogyny! Women have been embraced in the band and have been incredibly influential through its history. Ask any female member in the current or alumni bands, including myself (I, too, am posting under an alias to protect my privacy); most if not all of us cringe when people make it a point to call us “female members.” We simply want to be “members,” no more description necessary. I find your comments to be misogynistic, so please just stop!
    Also, do listen to the alumni members who are trying to tell the facts without distortion.

  47. Also, it’s the ATHLETIC Band, not the “activity” band.

  48. @Out of the Box – why do you keep going back to the compliance office report recommendation? I am specifically referring to the settlement agreement between OSU and the US Office of Civil Rights, which made Waters’ firing a corrective that MUST be implemented per item 10 of the agreement. Every lawyer that has looked at it has concluded that if OSU gave Waters his job back, they would be in violation of item 10 of the agreement. It is a requirement of the agreement that he be fired. The fact that the compliance office made no recommendation to fire Waters is a moot point, as the agreement is between OSU and the OCR, not between the compliance office and the OCR. OSU had to fire Waters per the agreement, not the school’s compliance office.

    As to what happened first, the firing or the agreement with the OCR, it’s a which came first chicken vs. egg argument. While the agreement was published weeks after Jon’s firing, the fact that the investigation had gone on for four years makes it unlikely that the settlement negotiation occurred AFTER Jon’s firing.

    Jon and his lawyer were also told by OSU that the band investigation had nothing to do with the OCR’s investigation that began back in 2010. This however proved to be a lie, when the settlement agreement was released, specifically stating the corrective actions of the band investigation as item 10, a REQUIREMENT of the agreement. This is one of many lies the school has been caught in regarding all of this.

  49. Emily, you mention that you are not sure about the validity of the report. Did you actually read the entire report? If you had read the entire report, then you would realize that these incidents happened prior to Waters being the director.

    As far as him handling the sexual assault issues, had you read into these reports you would realize that Gene Smith had been involved in the disciplinary action, which John followed to a T. You are correct it did not make much sense to suspend one of the females involved, but it was not waters decision. Also, this assault did not happen on any band time or trip, and therefore should not even be in Waters realm to even worry about. He did so as he felt was appropriate to report to the powers that be. The woman herself did not even file charges with the Columbus police, telling me a firefighter, paramedic and former officer, that she was really not injured nor needed assistance from anyone. If she did need assistance in this situation, she should have filed charges.

    Now to comment on why unless you would throw waters under the bus, all one needs to do is read the federal department of education September 11, 2014 report of OSU being investigated for miss-handling sexual investigations. I would like to add that none of those were from the marching band or the athletic band.

    Maybe it is just me, but if you actually would read these cases and reports from all parties involved, you would have a better understanding.

  50. “At this point the sky-high level of denial on the part of those who identify with the TBDBITL alums (meaning those formally affiliated–as distinct from what is certainly a larger group of folks who once participated but have moved on to other life activities and priorities) has become amusing, if not classically text-book.

    I have nothing to do with Ohio State. I didn’t attend there. I wasn’t in the band.

    What’s your excuse now?

  51. OSU has claimed the contract was ‘at will’ and employment can be terminated at anytime. Some supporters of Mr. Waters have accepted this claim and said that OSU should have just let Mr. Waters go and given no explanation, rather than smear Mr. Waters and the band with accusations.

    I have a hard time seeing how the lawsuit, even if successful, will result in Mr. Waters being the director once again.

    If the contract was ‘at will’ and the University, or the employee, can terminate the employment at anytime for any reason; then is Jon Waters suing for reinstatement of his job and his ‘at will’ contract? If so, and if he were to win, the university could terminate the contract again the next day citing no reason (adhering to the argument/request of some the supporters).

    What is the next step if the judge assigned to the case does dismiss the lawsuit? Is it over then?

  52. Hey everyone, Out of the Box is Chris Davey.

  53. All employment in Ohio is at will unless there is a contract stating otherwise. Further, OSU has provided documentation in its reply to the lawsuit that they notified Mr. Waters of this when he was hired.

    Now, Rob, I just reread the OCR agreement with the University. The language used there to describe the action taken by the University echoes that of the report–and speaks to strengthening the band leadership, not of any specific personnel decision. And there are reporting requirements for everything agreed to in the report. Again–it is purely speculative to state that firing Waters was required in order to arrive at this agreement–which contained the sorts of improvements typically set forth in action plans–primarily ensuring alignment of policies and practices with one another and with law, training and communication and some system of monitoring to ensure implementation and trouble-shooting.

    I would imagine that either existing or new policies required reporting of harassment/assault complaints directly to the Office of Compliance rather than a superior. This avoids the kind of finger-pointing that some are engaging in now with regard to Gene Smith. Nonetheless, if two students were engaging in forbidden behavior (drinking was it?) and one of the students assaulted the other during that time, issuing identical punishments to the two students amounts to victim-blaming and/or retaliation.

    And the issue of on or off campus, on or off the bus, or during band time or not band time must be viewed within the context of the class (recalling that band is an academic course for which credit is granted) and the reality that an assault victim, if the assault is ignored/overlooked, may be forced into daily contact with the attacker.

    Dory finds this line of thinking to be misogynistic. Rather interesting example of pretzel logic.

  54. @Out of the Box – it’s in black an white, and every lawyer this has been shown to has seen it and acknowledged it. From the agreement:

    “10 Implement the University’s recommendations and corrective actions from its investigative report pertaining to the Marching Band, which have been specifically incorporated into the Agreement.”

    The “Agreement” is capitalized because “Agreement” is defined earlier in the document as the agreement between OSU and the OCR.

    The “which have been specifically incorporated into the Agreement” means that pages 20 and 21 of the Agreement, which details the University’s recommendations and corrective actions from its investigative report pertaining to the Maching Band, and specifies that OSU fired Jon Waters as a corrective action, are the details of what needs to be implemented by item 10.

    If the corrective action of Jon Waters being fired is NOT IMPLEMENTED, then OSU is in violation of item 10 of this agreement.

    I’m sure you will disagree, but not because you are a legal expert, but because you have an agenda. Good day to you.

  55. Rob–the agreement is 16 pages long, so I’m not certain what you are referring to as pages 20 and 21. However, I still fail see ANY language anywhere that requires, or even suggests, that Waters must be fired.

  56. Out of the Box why do you continue to ignore the paragraph I posted from the OCR letter to Drake, that directly links their deal to end the investigation early with the marching band case?

    As far as Waters being at-will, 14th amendment protections apply to all state employees, and Waters was a state employee. The 14th amendment requires due process if the state (in the case OSU is the state), is going to deprive a public employee of liberty or property. A property interest would mean that he is owed the job according to state law. An obvious reason that one could have a property interest in their job is if state law says they do, as is the case for classified civil servants in Ohio. This is why OSU’s response repeats that he was not a classified civil servant. However, this is not the only route by which Waters might have a property interest in his job. The law does NOT explicitly say that unclassified public employees do NOT have a property interest. Because of his length of service, and his position, and OSU’s rules about tenure for instructors, there’s a possibility that, even though he was staff and not faculty, OSU’s own rules may still consider him an instructor, and end up requiring that he be treated as such.

    At any rate, the stronger claim is in his liberty interest. Unlike a property interest, his liberty interest is constitutional, rather than deriving from state law. In other words, in deciding his liberty interest, his at-will status, and his classified versus unclassified status have no bearing at all. According to existing case law, any public announcement (by the state or a state agency) about someone can trigger a liberty interest if that announcement affects their liberty. There’s also case law that makes it clear that harming future job/career choices is a deprivation of liberty. Their claim on this issue is pretty much a slam dunk.

  57. Mr. Fine–the quoted paragraph is open to interpretation regarding any specified course of action–in particular the firing of Waters.

    However, I find the following of interest:

    “A single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment. A single instance of rape is sufficiently severe to create a hostile environment.

    “Once a recipient knows or reasonably should know of possible sexual harassment, it must take immediate and appropriate action to investigate or otherwise determine what occurred. If an investigation reveals that sexual harassment created a hostile environment, a recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, prevent the harassment from recurring and, as appropriate, remedy its effects. These duties are a recipient’s responsibility, regardless of whether a student has complained, asked the recipient to take action, or identified the harassment as a form of discrimination. A recipient has notice of harassment if a responsible employee actually knew or, in the exercise of reasonable care, should have known about the harassment.”

    Also this:

    “Even if the sexual harassment did not occur in the context of an education program or activity, a recipient must consider the effects of the off-campus sexual harassment when evaluating whether there is a hostile environment on campus or in an off-campus education program or activity because students often experience the continuing effects of off-campus sexual harassment while at school or in an off-campus education program or activity.”

  58. Mr. Fine–given that Waters has never disputed that the University offered him the opportunity to resign it would seem as though the argument that this firing had an impact on his employment prospects is even weaker than it would be. Further, establishing either a property or a liberty right to employment–and specifically to employment in the specific job that Waters is claiming entitlement to–would be an incredibly steep uphill climb, if that were the direction his legal team were to take. However, I have not seen that included in their filings to date.

  59. When is a ruling about OSU’s dismissal request expected?

  60. Out of the box. I agree that paragraph doesn’t talk about Waters firing. I’m suggesting the existence of the case as a whole was the basis for the agreement, whether or not Jon was fired. I believe that originally OSU had a good faith belief that there was a real case here. And they made a plan, and made a deal. Later when the investigators realized they had no actual evidence, they decided to move forward anyway because the agreement to end the investigation was too valuable, and they had already made promises to the DoE. The reason I believe this is because it explains why their investigation report is devoid of any specific allegations. Why they continue to make their case through implications, and allowing the press to distort facts in the court of public opinion. (For example their repeated implication that Waters mishandled a case, when they know absolutely that this is not true.)

    As far as whether or not they offered him a chance to resign, that’s irrelevant. His claim to due process based on the liberty interest springs from OSU’s publicizing their alleged reasons for his dismissal in the national press. This was OSU’s choice, and was in no way forced by Waters’ decision to not resign.

    Since you are quoting elements of sexual harassment and hostile environment sexual harassment, let me point out some things. First of all there is absolutely no allegation whatsoever that Waters mishandled any sexual harassment case or sexual assault case. Second, there is no allegation whatsoever that the existing harassment/assault cases created a hostile environment for anyone. What IS being alleged is that the band’s culture in and of itself was a hostile environment of sexual harassment. And one of the elements required in this definition that you are overlooking is that the harassing environment must be so severe that it affects the participation in or benefit of the program (the band in this case). This is where OSU completely failed to produce a shred of evidence. Where are the droves of people quitting the band because of this environment? If they don’t exist, then BY DEFINITION the hostile environment doesn’t exist.

  61. Mr. Fine–The evidence simply piles higher and deeper, including the nicknames, the tricks, the bus behavior (including the flying 69, ritualized groping, off-color songs, rookie introductions, Trip Tic, dangerous levels of drinking, rookie midterms), subservience of rookies (by whatever name) being sent for snacks. Some of this may merely be generic hazing behavior, but the majority of it is sexualized. Now throw in the calendar and the videos. And the additional assault. And the claim of harassment via twitter during the harassment training. The law does not require droves of people quitting the band. But we know that the woman who was assaulted and whose mother fired the Title IX complaint with regard to the atmosphere DID in fact (according to the interview she gave to the press) decide not to audition for the current school year, citing her discomfort. So–Joobs, Tiggles and Donk can stand up and claim that they were OK with their nicknames (although also claiming to have been made UNcomfortable with them once they were cited by the University–which is certainly a twist), but they are not the only ones impacted.

    Oh, and one more thing, firing an employee of Jon Waters public status could hardly have been done without an announcement of some kind. But as far as the publication of the investigative report, or any of the exhibits, those things are all public record. The report and the court filings were produced for specific legal purposes, not publicity pieces. In fact, you may recall that the early criticism of Drake was they he did not engage the press enough on this matter.

  62. The Drake goons are out in full force. It must be near Halloween. When I was in school we questioned the administration. These goons just drink the Kool-aid. Interesting dynamic here. Some of these posters have very strange moral perspectives in their arguments for Drake. They sound like people who ignore truth when it doesn’t fit their preconceived agenda—-when refuted by facts, talk haughtily. They read like jaded bi-coastals, not Ohioans.

  63. The evidence you mention is simply slander. The vast majority of incidents occurred outside of band or before Waters time as full director, or both. As such it’s not relevant to the culture of the band. The participation and benefit that I mentioned refers only to students’ participation in and benefit from class time. What they do with their personal time can not possibly contribute to a culture of harassment.

    The other huge mistake that they made is that they simply make a claim the band was sexualized, and leap blindly from there to the conclusion that this meant it was a harassing culture. “If women dress in a sexualized way, they are going to be raped.” This is the EXACT logic OSU uses. It is not only unsupportable, it is offensive. To show harassment, it is irrelevant to show a sexualized culture. They have to show, you know, harassment. Like I said, people who could not participate or benefit. They did not show that.

    To sum up, they make a claim of “sexualized” which I and thousands of others dispute. For evidence they offer largely irrelevant slander. They draw a morally reprehensible, and legally unsupportable conclusion of harassment based on that. They fail to make any direct accusations, operating only through innuendo.

    Finally, of course they could’ve fired Waters with no explanation or a vague explanation. The information they offered was not public record. Ask yourself – in any other sexual harassment case does the University release intimate details of the case? Of course not. It’s all been about the publicity, and it continues to be.

  64. Mr. Fine–I suggest you read up on Title IX and case law into what constitutes a sexualized or harassing environment. And recall that the absolute defense to slander is truth. In fact there were raunchy song books. According to the account of a band member writing in Waters’ Defense, he was aware of them because he took one away from a student during the time in which he was Band Director. This conflicts with his testimony that he was pretty sure that these things were no longer being revised, reprinted or circulated. And despite the claims of many claiming to be band members or alums–saying that the song books were merely an artifact of an earlier time, revised copies from as recent as 2012 have now surfaced.

    The health care volunteer has testified to behavior that occurred on Waters’ bus on trips–despite his denying that such things ever happened. And her level of concern was sufficiently high that she left a volunteer position she had held for 18 years–all of which has been documented through emails.

    And again–group behavior occurring outside of the formal classroom IS relevant. The line that you, and Waters and many of the alums who post between official and unofficial behavior does not hold up when people who are harassed (or assaulted) in those unofficial situations are forced into contact with their harassers (or assailants) during the official class (or work) time. And, when the harassing behavior is carried out by persons in authority (such as line leaders), then the responsibility becomes greater.

  65. Real TBDBITL alumni

    Out of the box / president drake,

    I suggest you read the 1st amendment (which of course supersedes title IX). There were raunchy songbooks shared between adults just like there are raunchy songs that people listen to dorms. These books were not out during band Rehersal times or games, they exist in people’s dorm rooms, lockers, and apartments. No one is forced to read them.

    Is the Band Director supposed to be law enforcement to 225 people 24/7/365? Show up at their place and search through their closets and desks for any song book that may exist?

    Finally sexual assault is not the responsibility of band directors, football coaches, professors, or university compliance officials! It is a crime that we have a legal system of police, lawyers, and judges to address.

  66. So, recapping this thread…

    Mr. Fine and Mr. Cohen are citing facts and are standing behind those facts with their names. “Out of the Box” is peddling innuendo (proven falsehoods and mischaracterizations fron the Glaros report) and hiding behind an anonymous moniker (using some laughable excuse about having a unique name…as if he’s afraid that being outed will subject him to something worse than the ridicule that he already deserves). I ask: who is credible and who appears to have a hidden agenda?

  67. Real TBDBITL–pretty clear you majored in music and not law.

    I point you once again to the words “knew or should have known.” With regard to the demeaning songbooks, we have the statement of one current student that Waters did know of their ongoing existence and use. We have the statement of the health volunteer that he knew of a number of hazing activities (flying sixty-nine, rookie introductions and the groping exercise) and that they had occurred on his bus during trips. The Midnight Ramp has been attested to by many, including Waters presence there. Waters provided investigators with the Alumni roster which was their source for the nicknames in use.

    All of these things did happen according to testimony and documentation. While some may have ambiguous times and dates, there are certainly a number that occurred not just within Waters’ time of association with the band, but during the time in which he was the Director.

    You might want to take a look at the actual wording of Title IX, as well as some of the guidance that has been provided to Universities over the years by the Office of Civil Rights before you go around spouting that University personnel have no responsibility with regard to harassment or assault either on campus or between students.

  68. And Mr. Sekel checks in with another item from the TBDBITL alumni approved list of red herrings (use of real names), carefully worded according to the approved verbiage (“Glaros Report;” “proven falsehoods and innuendo”). Got a real PR plan in place, haven’t you. If you say proven falsehoods often enough, do you think someone will start to believe that there is actually some proof somewhere?

  69. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

    Interesting it does not say “Marching Band Directors shall also prevent sexual assaults, harassment, and completely eliminate “sexualized culture”.

  70. Title IX–Consider the following guidance from the OCR:

    Under Title IX, federally funded schools must ensure that students of all ages are not denied or limited in their ability to participate in or benefit from the school’s educational programs or activities on the basis of sex. A school violates a student’s rights under Title IX regarding student-on-student sexual violence when the following conditions are met: (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”

    Documentation already cited by the University pointed to policies in effect when Mr. Waters became Director that required him to report knowledge of alleged conduct within five days. And this is where he runs into difficulty with his protestations of attempted change. And where the TBDBITL alums defense becomes screwy. On they one hand they claim nothing happened–the song book was old, the nicknames weren’t offensive, tricks weren’t happening, etc, etc. When confronted, the story becomes, well it happened, but nobody minded, they didn’t have to go along and all that. And should someone stand up and say that it was offensive to them, or part and parcel of something more harmful–well then the song changes again to well, everybody does it. All of the above cannot be true. Clearly, by his own admission, Waters was aware that things needed to change. Maybe he believes that, maybe its just a good after-the-fact cover. Maybe he tried to be a change agent, maybe he didn’t. But, in each and every supposed instance of attempted change, there should have been reports made to appropriate University personnel and University level actions taken. That couldn’t happen because he kept it all to himself. And even when he had the opportunity, during the Title IX investigation, he apparently felt a higher (albeit misguided) obligation to protect himself and the various band members who were engaging in behaviors that created a hostile environment and therefore failed to be “forthcoming.”

    The irony is that his employability is very likely declining with every day that he continues as he has been. Two months ago he was a great director but a very poor social change agent. Today his former band continues to look great on TV while he looks more and more–to potential employers–like an entitled prima donna unable to learn from his mistakes.

  71. The majority in this discussion agree that the University was not justified in the firing of Jon Waters. Fair people know it was an expedient but ill-advised way to handle a federal charge. The inability to predict the damage it would cause is a major failure of leadership. The damage done to the proud marching band, the band alumni and the entire alumni of The Ohio State University is huge and the controversy will never end, notwithstanding Archie Griffin’s attempt to equate it to the firing of coach Hayes .

  72. Guidance from an OCR bureaucrat does not equal law. What I quoted is the actual law as written by the legislative branch who’s job it is to write laws. It sounds like the OCR which is part of the executive branch responsible for enforcing laws wants universities to do their job for them.

    Even ignoring this, the university praised Jon on his handling of any issues with the band less than 2 months before firing him. All of the things in the Glaros report only point to this made up term “sexual culture” which I would like to hear defined against the “sexual culture” of our society.

    I’m sure I or the others who have posted have not convinced you so I will no longer waste my time with logical arguments seeing how you live in an alternative universe where you think marching band directors make good babysitters of adult citizens.

  73. Rick–perhaps because this is a student newspaper serving something of a niche crowd one might expect a bias that differs from that of legal experts, or even reasonable persons drawn from other demographic pools.

    Recall that a good bit of the organizing is coming from the TBDBITL Alum group, which skews quite heavily white, male and privileged. This is not to deny the participation of Joobs, Tiggles and Donk. Only to suggest that perhaps a majority vote is not necessarily going to match up with what the court says.

  74. (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.
    ———————————————

    If that is the correct definition of Title IX, I’m afraid the hostile environment likely did exist. The rookie midterm is an example of that. Some say, that was done outside of class and before Jon Waters time as head director. However, Mr. Waters said himself the culture was entrenched. Common sense says the culture of the band-related activities outside official band time overlapped into the social aspects of band during official activities. Furthermore, Mr. Waters was a part of the leadership staff when these things were taking place (and knew of them directly from his time as a student). This is no excuse for Dr. Woods being oblivious to these activities, but Mr. Waters is also at fault for not putting a stop to it.

    The claim that “no one had to do anything they didn’t want to do” is also frustrating to hear. I, and several others I know, and I can only assume others that I don’t know, proactively avoided The OSU Marching Band for the very reason of these ridiculous activities. Being part of the University Marching is something that several students would like to audition for, but why should they even be put in the position of saying that don’t want to do the over the top vulgar, offensive, and clearly sexually themed/influenced activities (even if their non participation is tolerated)?

    If the culture was improving, several of the activities were still lingering. I agree with Mr. Waters that changing things slowly, obtaining student buy-in, was one way to do it. But it was not the only way as he claims. It was likely HIS only way, given his closeness to the students and the organization. Although the students loved and respected him, by claiming slow change is the only way, concedes that the students wouldn’t follow through if he put his foot down and put a stop to it. In fact, it is not an impossible task. President Drake’s firing of the head band director sent a shock through the entire organization, and declared that this situation was very serious. And in turn, those activities did change on a dime, with the implication that if they are found to continue, dismissal or suspension of the ensemble is right around the corner. The sad thing is that Mr. Waters does have integrity, and likely did not contribute to many of these activities as a student. However, if the head band director cannot make an immediate change to this type of culture, then the head band director has to go, and the fact that Mr. Wasters is innocent of individual participation likely adds to the anger and guilt of those who did contribute to the negative side of the culture.

    I wish Mr. Waters the best, and I wish he would take the advice and example of Jim Tressel. A talented, principled, and accomplished coach who was told by a professor at his going away ‘party’ that this is only one chapter in his life, and that his greatest accomplishments are still ahead of him.

    People’s goals are constantly changing according to circumstances. But your purpose, your real reason for being, that is what supersedes. – Jim Tressel

  75. Out of the box writes:
    “And again–group behavior occurring outside of the formal classroom IS relevant.”

    How can anyone be harassed by behaviors that they chose to witness? And how could OSU or Jon Waters be responsible for that? In corporations, sexual harassment has extended to extra-curricular activities only when those activities turn out to be required for the job. But no such thing applies here or has been alleged. Outside activities are outside.

    “The line that you, and Waters and many of the alums who post between official and unofficial behavior does not hold up when people who are harassed (or assaulted) in those unofficial situations are forced into contact with their harassers (or assailants) during the official class (or work) time.”

    Jon was fired for the marching band culture. Not for his handling of sexual harassment or assault cases. Furthermore the situation you are describing (which by the way you seem to have made up, because no one has alleged anything like this) is in fact Ohio State’s responsibility not Jon Waters. He reports an incident, at which point the University takes responsibility for any accommodations that are needed to remedy this situation. If such a thing were to happen, cetainly OSU would need to include Waters in that process. But this is all hypothetical fiction anyway, since as I said there is no allegation of any problem here. There was one marching band student who chose not to return to the band, and while we can guess that the assault was a significant factor, this is not known. It’s very typical to only march three or four years in the band. And if it was a factor, as I said, it was up to OSU first and foremost to find a way to deal with that issue.

    Out of the box writes: “And, when the harassing behavior is carried out by persons in authority (such as line leaders), then the responsibility becomes greater.”

    You’re making stuff up again OotB. There’s no such allegation anywhere. You are actually implying here that Waters harassed or assaulted someone? Unbelievable the depths to which you will sink to convince yourself or others that you are right.

  76. Mr. Fine–you seem to be an intelligent person, however playing dull witted or ignorant when it comes to a number of fairly specific definitions. The marching band culture was one of sexually-oriented harassment. Nicknames, of which Mr. Waters estimated that half or more were questionable, were assigned by line leaders. As were tricks and other rookie tasks such as going for snacks (Waters says he made sure that the rookies were given some money with which to purchase the snacks–presumably an improvement). They assigned the rookie introductions and rookie midterms. They also had input into whether a player was selected, or advanced and was evaluated. A number of these activities were reported to have taken place on buses–a fairly enclosed small space–with very limited means by which to avoid said activities.

    Further, the same band organization played into the party–reportedly given by the tuba section–where competitive binge drinking was the main activity (likely including some folks not old enough to do so legally) and a female student who fell asleep or passed out awoke to find herself being assaulted. Now, it’s true, it is very difficult to draw lines of causality from the activities that were happening within the trip and game culture and activities to that occurrence. But it is equally difficult to make a case that there is NO relationship. And even more difficult to make a case that anything within the culture of the band might suggest to band members that this kind of behavior is anything bu expected.

  77. SeekTUbuckeye–excellent. Well written and reasoned.

  78. Maybe he/she is using his/her real name. Perhaps his/her last name is “Out of the box” and the first name is “Can not think.” Out of the box, it’s interesting that you cite PR tactics, since that is the only thing tOSU has going for it. But then again, you should know that. And, maybe you have a more convenient definition of “proof.” But when women come forward and publically claim that their comments to tOSU investigators were misrepresented and mischaracterized (or more directly for you, lied about) within the Glaros report, that’s what I would consider to be proven falsehoods. Even a band and/or Waters hater like you should be concerned when your beloved university does that…or are you truly that blind to the truth in support of tOSU. Finally, it doesn’t really matter what you and the rest of us agree or disagree with as the truth. In court, witnesses will likely come forward and testify that the Glaros report misrepresented interviewee statements. As a surrogate for tOSU, you should know that an impeached credibility will not bode well for tOSU in any court.

  79. Mr. Box,

    You invent new slanders with every answer you provide. I have mentioned that i was in the band for five years, and yet you sit there and tell us all about the things that squad leaders do and do not do? You have no idea what you’re talking about Repeatedly, people who are in the band tell you that you are wrong. The only apparent expertise you bring to the table is that you’ve misread a discredited report.

    Pretty much everything you’ve said about squad leaders and nicknames and the rest is all wrong. OSU got it wrong. OSU took isolated incidents, exaggerated the details, and characterized them as defining the band’s culture.

    Take nicknames for example. Squad leaders didn’t assign them. The row assigned them. Including the rookies. Rookies reject suggested names all the time. Rookies would tell us other nicknames they’d used in the past, and often those were used. But even the nicknames that are accepted are mostly forgotten, and mostly not dirty. It’s interesting because if you had asked me off-the-cuff how many nicknames were dirty I might’ve guessed about half too, but this mess has afforded me the opportunity to review my own band experiences in more detail and out of about 50 people in my section I can only remember two or three “sexual” nicknames. They were nicknames that were picked because the fit in with jokes that person had already made. And again, were seldom if ever used.

    Binge drinking at private parties? Another exaggeration of events that you seem to be an expert on even though you weren’t there. I always saw more heavy drinking at non-band parties than I did at band parties. Not that this is relevant at all. Where is this mentioned in the case against Waters? Oh right, it isn’t, this is just you spreading slander about the band again.

    You also bring your own ridiculous assumptions to the table. Assumptions that ANY of these behaviors were somehow required. The most important thing about the band culture is the tryout and challenge process. This is the only way to get in the band, and the only way in or out of a regular marching position. This is critically important to our culture, because it’s the context that frames everything else. There’s no band tradition at all that takes place prior to tryouts besides summer practice. And after someone is in the band, they are IN. The only goal of any tradition after that point is to help these people feel included. I think people imagine some sort of fraternity rush situation. “If I don’t do this I can’t be in the band.” But that’s not at all true. Rookies always were free to choose to do or not do any suggested activity, and that was always made clear. There was nothing to lose, no chance of retaliation, because they were already in the band. So everybody gets a nickname because it’s a tradition that helps people feel included. Why on earth in that context would anybody give someone a nickname they didn’t like? This tryout system frames everything else that happens in band. The tryout process is the true culture of the band.

  80. SeekTU_buckeye correctly describes (quotes?) the definition of a hostile environment of sexual harassment:
    “the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment”

    This is the bottom line that our detractors keep ignoring. Where is the participation or benefit impacted? No one has shown it ever. And it is a necessary, or even THE necessary thing to show in order to show that a hostile environment exists. Without this, everything else is just slander. A list of crazy, exaggerated things that are rumored to have happened. That’s all.

    It’s been pointed out that these after-hours activities must occasionally spill over into actual band time. Yes, this is true. But NOT NEARLY to a level sufficient impact the participation in or benefit from the band. SHOW ME THE IMPACT.

    But SeekTU_buckeye did make a feeble attempt to address this very issue:
    “The claim that “no one had to do anything they didn’t want to do” is also frustrating to hear. I, and several others I know, and I can only assume others that I don’t know, proactively avoided The OSU Marching Band for the very reason of these ridiculous activities. Being part of the University Marching is something that several students would like to audition for, but why should they even be put in the position of saying that don’t want to do the over the top vulgar, offensive, and clearly sexually themed/influenced activities (even if their non participation is tolerated)?”

    Let’s talk about one more really obvious thing that does NOT constitute a hostile environment: rumors of things you have not personally experienced. This means of course that people who choose to not take an entirely optional class are evidence of nothing more than that everyone is different and follows their own path in life.

    Let’s try an analogy: “I know lots of people that will never become Catholics because they don’t want to be part of a culture that forces you to simulate cannibalism, and also forces you to tell all your dirty sexual secrets to someone in a dark little booth.”

    Well, these people first of all have a distorted outsiders’ view of that culture. And second of all there’s probably a much longer list of reasons why those people will never choose to be Catholic. You can hardly conclude from any of this that the Catholic church is a hostile environment.

    Where is the line between harassing behavior and normal behavior? Is it when we don’t like that behavior? Or don’t approve of it? Or are offended by it? It’s none of these. The first amendment guarantees freedom of expression, and this is the limit against which the definition of hostile environment pushes. And the limit of the first amendment is harm. This is where the “participation or benefit” standard comes from — the harassing behavior has to be so severe that it causes actual harm, i.e. that it makes it IMPOSSIBLE for someone to participate or benefit.

    One of the tests that must be applied in assessing a hostile environment is a “reasonable person” test. Would a reasonable person find this culture to be so hostile that it is impossible to participate or benefit? Of course, the prerequisite to such a test is that the environment is accurately described. No reasonable person could participate or benefit in an environment where they were forced to simulate cannibalism or confess their dirty sexual secrets in a dark room to someone they hardly knew. But of course that’s not an accurate description of the Catholic church.

    This is the question you must answer, that you keep avoiding. Where is the actual harm? Where is the student who found it impossible to participate or benefit? If you can’t answer this question, then you are just slandering the band.

  81. If you would include Mr. Waters as an example of a reasonable person, then his own assessment of the past band culture was that at least elements of it were inappropriate, and bad enough that it needed to be changed. Mr. Waters’ lawyer said those bad things happened to Mr. Waters as a student, and he was deeply affected by it. (If nothing of the past band culture was wrong, why would they make this statement).

    “The culture in our band is entrenched,” Waters said. “And it doesn’t turn on a dime. On my first day I engaged with my leadership team to try to shape the culture and eliminate poor behaviors.” -Today Show

    In fact, the culture really did need to change on a dime. The head band director was not fired because they didn’t try to change the negative aspects of the culture, he was fired because he “knew or reasonably should have known of it, and failed to eliminate it.” Eliminate being the key word.

    Don’t argue that negative elements were not there. Mr. Waters says they were there, and he was working to change it, but he couldn’t do it quickly.

    It doesn’t matter who the head band director was, once these things were found out, that person had to go. The act of firing the head director shows the seriousness of the situation. Mr. Waters admitted not all aspects of the negative culture had been eliminated. Though, which of those aspects are still present after firing? I suspect none. If they are still going on, the individuals would be dismissed or the ensemble would be suspended as a whole. However, if indeed the behaviors are still continuing, if the current leaders know about it, are purposely ignoring, are not reporting and not dealing with it… I would agree that the University would be acting hypocritical in that case.

    We likely can agree that everything on this board discussion are simply words with no real weight. The legal process and court will make the ultimate decision of what happens at this point. There are likely more influential uknowns that none of us are privy to.

  82. SeekTU_buckeye says: “Don’t argue that negative elements were not there. Mr. Waters says they were there, and he was working to change it, but he couldn’t do it quickly”

    I absolutely do not argue that these elements were not there. I argue that they did not even come close to rising to the level of a hostile environment of sexual harassment or of specific incidents of sexual harassment. He was working to improve them because it would make the band better, nothing more. This all goes back to the point that everyone keeps ignoring — you can’t claim a hostile environment if there’s no cases where students’ participation or benefit was harmed.

    SeekTU_buckeye says: “It doesn’t matter who the head band director was, once these things were found out, that person had to go.”

    Based on what? If there was no harassment and no hostile environment then why should anyone be fired? In fact, even in a situation where such an environment was actually found, why does firing someone make it better? Are the students better off with this big scandal? Are people really going to be more willing to report incidents if they think OSU is going to fly off the handle and make a mess of things? I’m pretty sure students are far less likely to report issues because of the firing and other aspects of OSU’s irresponsible handling of this situation.

    SeekTU_buckeye says: “Mr. Waters admitted not all aspects of the negative culture had been eliminated.”

    OK, fire anyone that doesn’t eliminate the problem of college students telling inappropriate dirty jokes? There’s not anybody you wouldn’t have to fire. It’s not Waters job, or anyones job, to eliminate all aspects of a negative culture. That would be a police state rivaling Orwell’s.

    You might be right if you are only talking about those aspects of the culture that constitute a hostile environment, but as I keep saying, no such hostile environment has ever been demonstrated. In the absence of such a hostile environment to eliminate, please offer a standard that’s actually reasonable, like taking appropriate steps for lasting culture change. I’d give Waters better marks in this regard than I’d give Ohio State. He was working with students to bring about change that would become part of the culture. OSU is firing people to create a public demonstration, which harms rather than helps any actual victims anywhere on campus with an interest in reporting cases privately and without repercussions.

  83. InterestedObserver

    Interesting points by all. I think the key is “sexually hostile.” I don’t think there can be any doubt that there were aspects of the marching band culture that had sexual overtones. I think Mr. Waters wanted to change some of that. The real question is was it hostile and misogynistic. I don’t think Mr. Waters, the current members or the alumni would grant that of the culture.

    There is in my opinion an unfortunate confusion between correlation and causation that is founded in the OCR guidance letter itself. The argument put forth is there were songs, calendars, quizzes and stunts that were sexual in nature. Then there was an off campus, after hours assault that was by all accounts handled appropriately by Mr. Waters. But the university report somehow takes this correlation and turns it into causation implying the sexual assault must be because of the sexual atmosphere and therefore worthy of the label “hostile”. It infers the student left the band and in fact school soley due to band matters. I don’t know if that is true or not but it has certainly not been proven. Out of the Box is making this same leap and I will hazard the guess if ask the OCR would concur.

    However, the OSU First Year Experience played Anaconda on the loudspeakers in the stadium with adds by Victoria Secret for all the freshman. There are always Women of OSU calendars everywhere and the University does not stop this just as Mr. Waters who wasn’t even in charge did not prevent the 2007 calendar. The culture census by the university given to the marching band members per OCR was significantly worse than the TripTics and on the record. The university still allows the Mirror Lake Jump filled with excessive drinking and “partially” nude participants as the police hand out blankets. The USG is taking steps much like Mr. Waters to get student ownership to curb behaviors and change perceptions of the Jump but one could argue analagously that it is and will have little effect. If the university were serious, they could end it immediately if they chose too and not allow those “children” to put themselves in harms way. We also know that campus assaults continue and the university continues to fail to handle them appropriately per OCR itself. The university is trying to comply but also will not stop that.

    The marching band is indeed a microcosm of the university. The question is “Who should know or should have reasonably known?” and be held accountable. Sex or discussion of sex does not mean hostile violence. Correlation does not equal causation and basic due process requires causation for an individual to be held accountable for conduct outside the norm.

    The OCR with good intentions has placed all universities in a very difficult situation. They have in my opinion failed miserably on all accounts: protecting victims, treating people with respect and decency and most of all acting in good faith. I am shamed by my university and my government…

  84. I’ll go a step further than that. They haven’t even shown correlation, only coexistence. Consider the frighteningly relevant example of blaming rape victims based on their attire. ““If women dress in a sexualized way, they are going to be raped.” Not only has it been shown that women’s clothing doesn’t cause rape, it isn’t even statistically correlated to rape.

    This leap that Ohio State makes from “sexualized” to “hostile” is precisely the same leap as claiming that a women’s clothing choice can get her raped. It’s not just a bad scientific or legal argument — it’s also offensive. Ultimately all they’ve done is show intolerance towards a culture that they don’t understand.

    There was a time when homosexuality was deemed by mainstream society to be a disgusting perverted behavior. It was a viewed as a sexualized culture, and all the sexual details were inflated and exaggerated to dehumanize gays. Today most of us recognize that judgmental behavior as intolerance. But this is essentially the only thing that the administration has actually accomplished in this case: to dehumanize the band members and staff.

    Yes, there are things in life we should not tolerate. But only those things that can actually be shown to be harmful. OSU has failed utterly to show that this culture harmed anyone.

  85. Excellent points by Thomas Fine and Interested Observer. The whole situation caused by the university and the OCR have left us in a worse position than before. They have done nothing to prevent harassment and assaults and have placed responsibility, that should solely be on the criminals who commit these acts, on people like the band director and students doing things ment to be statirical humor. We have the best legal system in the world but are instead using university kangaroo courts to try to administer justice. Constitutional rights of freedom of speech and due process are ignored as the nanny state has expanded to universities.

  86. When Waters was asked if “negative elements” were there, of course he had to say they were there. Negative elements exist at every college. College is the first four years of legal adulthood for millions of Americans. College is an environment of taking thousands of the most immature legal adults that exist in society. The culture is a result of that.

    The question is, was the law broken?

    The OCR investigation that began in 2010 was trying to answer that exact question. It spent four years investigation 87 cases of sexual assault at OSU and found the majority of them to be mishandled by OSU. The evidence was overwhelming enough to send this to court and so overwhelmingly not in favor of OSU that OSU wanted an out of court settlement. While this kept us from hearing an official court decision as to whether or not OSU broke the law, it’s pretty clear given how the investigation concluded that OSU did break the law.

    Now, despite Jon and his lawyer being told that the band scandal had nothing to do with the four year OCR investigation, we now know that OSU lied about that (making OSU both law breakers and liars).

    But the same question needs to be answered. Is the band scandal an incident of the law be broken? Now, one can argue that Jon was an “at will” employee, and could be fired for any reason, so his firing does not require a law being broken. However, it was made clear that OSU had to make the decision to fire Jon by the end of July BY LAW, because Title IX is the law and title IX required the school to respond to the late May complaint by the band members mother within 2 months. So if the decision to fire Jon had to be made by a date set by law, then the decision to fire Jon is a matter of the law that set that date.

    So the question needs to be answered, is the band scandal an incident of Title IX law being broken? And this is where Jon suing the university will get this question answered by a court of law.

    To use Jon’s words stating that “negative elements” were there, is not evidence of Title IX law being broken, unless one logically concludes that every single culture at every single college and university is a violation of Title IX. Because every single college and university being made up of societies most immature legal adults is by its very nature a culture of “negative elements”.

    I had to do classwork with classmates outside of class time for nearly every class I took at Ohio State. And there was a culture surrounding all of that work that I needed to do to pass the class. Walk around the campus and neighborhoods surrounding it. It’s everywhere. Do you honestly think the behavior of the band members when they weren’t rehearsing and practicing is any different than the behavior of the rest of OSU’s student body when they aren’t in class or studying?

    What was done by marching band members when rehearsal, practices and performances ended in the fall is the same thing that was done during the Winter, Spring and Summer at OSU by all students. And by non-marching band members in the Fall. And it’s also the same thing that goes on at every college campus in America, and even around the world for that matter… it’s societies most immature legal adults being exactly what they are… most immature legal adults.

    And they have every legal right to do that, as long as they don’t break the law. So again, WHAT LAW WAS BROKEN BY THIS BAND SCANDAL?!?!?!?

    The Glaros report through out a ton of stuff, and did so in such a way as to present it as “shocking” as it possibly could. WHY? If a law has been broken, then state what was done to break the law. Whether the band was doing 10 immature things or 100 immature things or 1000 immature things, it doesn’t matter if they are legal. It’s not illegal to be immature. It’s being a “negative element”, yes… but NOT ILLEGAL!

    If the Glaros report were of any value, it would say “here is where the marching band violated Title IX”. But it is so full of drama and shock value rhetoric about the immaturity of societies most immature legal adults that if it does actually contain evidence of a broken law, it’s lost and no more valuable than a needle in a haystack.

    Yet, it’s what the university parrots, such as Out of the Box, base their entire argument on.

    OSU broke the law. The out of court settlement with the OCR make that obvious. OSU lied. Stating the OCR investigation had nothing to do with the band scandal proved to be a lie when the OCR settlement agreement was reached. OSU is hypocritical. It claims to be about protecting its students, but the Glaros has victimized thousands of its students, both past and present, and they continue to victimize more and more of them as this drags out and they try to justify what they’ve done.

    Law breakers… Liars…. Hypocrites! This is the OSU administration. They are “the Shame of the Buckeyes” for what they have done to “the Pride of the Buckeyes” who have not broken the law, are being honest, and mean what they say.

    If OSU has a leg to stand on here, then show where the law was broken. If it can’t, then OSU management is just showing it doesn’t know how to manage an environment made up of society’s most immature legal adults, and should be replaced by people who realize what they are dealing with, and don’t expect perfect mature adults as students.

  87. Joe, should this actually make it to court, I would expect that there are tape recordings or transcripts of actual interviews that will be brought in. But, I don’t see the court ruling on the legitimacy of the Compliance Office report, as the University does not have to justify their firing of an unclassified employee.

  88. Mr. Fine, the information about binge drinking comes from two sources–the assailant and the victim, in interviews provided to the press. According to them, the tuba section had an “Uncle Jack” party, at which competitive chugging of Jack Daniels was a primary activity. Despite the provision of drinking iced tea as an alternative activity, the assailant described massive drunkenness and passing out from drinking. Prior to official knowledge of the incident, the assailant was scheduled to dot the i.

  89. Mr. Fine–some things are obvious on their face. Singing songs, or circulating songbooks comparing rival schools to women on their menstrual periods would be an example of contributing to a hostile environment towards women. Now, would you require a poll of women (not just those who make it into the band) before you are willing to accept that? And no one has yet even touched on hostility towards gay men.

  90. Mr. Fine–in asking for the actual harm, we can return again to the assault victim who declined to audition for her final year–citing fears of mistreatment because she would be known to the one who complained (or rather whose parent complained). However, there is also the ongoing reality that the band attracts far more males than females. Now, I know the argument about woodwinds and women. But, that only begs the question of what YOU might consider acceptable evidence.

  91. And finally, Rob. With regards to a law being broken. What the OCR is working on–and is specified in the law–is not solely a case by case response to charges after the fact, but ensuring ongoing prevention of future cases. So, with regard to the specific complaint, regarding a hostile environment that was overlooked by Jon Waters–as a representative of the university, the Compliance Office report, using a preponderance of evidence standard, found that such did exist. And again, I must point out that the report did not specify of remedy of firing Jon Waters, only strengthening the band leadership. This would allow the university a number of options. However it is clear that one of factors that led to the firing rather than other possible options, was Waters’ reluctance to participate honestly with the investigation (not forthcoming) as well as his tendency to apply his own remedies without properly involving the university. Further, anyone who actually read his own accounting of efforts to change the culture–and knows anything about such things–would recognize that there was no sense of planning or urgency, or that such change was even on the radar. He provided some minimal training and otherwise operated in a response mode when certain actions become so obvious as to require his attention.

    In business as in education it is frequently the case that a position requires skills or abilities that are not present in the person currently holding that position. At that time a decision must be made about the investment in that individual. Can they be brought to a position of such skill and ability through training in a timely manner? Are they willing to undergo such training? Does the expense of such training outweigh the expense of letting the person go and hiring new? Would the person’s identification with the old guard provide them with insurmountable barriers to bringing change?

    The administration clearly weighed all of these issues and determined that Waters is not the person for the job at this time. And they are willing to take on an extremely vocal old guard in order to do so.

  92. InterestedObserver

    Out of the Box,

    I appreciate your inputs and I believe you are citing the OCR intent. Serious question: To what extent does this case hinge on the assault victim not returning to band because of the band culture as Mr. Fine suggests? What if there were other factors for not returning to band, not returning to school and in fact leaving the state? She did in fact complete the season after the assault which must shed some light on the nature of the culture vs a desire to participate.

    Also, what must the university do to show she has been removed from the negative aspects of reporting the assault as required by Title IX. Certainly the media coverage made her discoverable to me who had no previous knowledge. Even this continued chat on this forum must present significant impediment to her returning to school. What is an appropriate remedy?

    Also, now that the band is being publically verbally abused as documented in the Alumni report, what rememdy must the university show to OCR to claim the band has been removed from a hostile environment? Even if you accept the definition of THE BAND as perpetrators, that cannot apply to the current freshman class who were not part of any of this and are now singled out by merely wearing the uniform.

    Whether you are legally correct or not, I am trying to understand who has been served by the university’s actions here. Everyone including the 87 open cases, the band victim, the band, Mr. Waters, the new president, and the university as a whole have been diminished. To top it off, if in fact you are correct, then a very few members of the band who are actually responsible have incurred nothing and so many have been harmed. This cannot possibly be in the spirit of Title IX and the Dear Colleague Letter. Or can it?

  93. IO–let me first disclose, I am not an attorney. However, there are several points to consider, to my layman’s mind. One is the reasonable person standard. Another is the preponderance of evidence. These both go into the determination of whether a hostile environment exists. So–based on the evidence examined, which included not only interviews, but also a number of artifacts and a pattern of responses to issues (such as changing on the bus) which could potentially be considered Title IX complaints–whether officially submitted as such–and it was more likely than not that a reasonable person dropped into the situation would find it to be a hostile environment (consider the newly hired band employee who, after attending his first Midnight Ramp responded “I can’t believe that I just saw that.”). As I said above, many things are abusive (such as the songs) on their face.

    Now the emphasis of the OCR is not on levying penalties for infractions, but rather issuing guidance (in the form of Dear Colleague letters and Corrective Action Plans) to ensure that reasonable efforts are taken to prevent infractions. Such prevention typically entails the kinds of things listed in the current agreement with the OCR–consistent policies and practices. Internal monitoring to ensure that policies and practices are followed. Training and structures to ensure adequate knowledge on the part of all parties to not only prevent, but to facilitate reporting of infractions.

    So–while some have taken the mention of the university response to the band issues to mean that firing Waters was a trade-off, that is much more there that would, to my mind, carry greater weight. These would include having an operating Compliance Office adequately staffed and empowered to carry out an investigation within the recommended guidelines, to make change recommendations, and for the university to act on them.

    As regards past infractions–and I believe that they likely exist–that were either not reported, or followed up on, I would imagine that yes, there were individuals who may actually have assaulted others, or harassed them. I don’t know what the timeline for reporting looks like, but perhaps there will be others willing to come forward in a new atmosphere of willingness on the part of the university to investigate and to act. As I understand it, a piece of the prevention of future acts includes university-wide climate surveys (or at least a band-wide survey being implemented by the Montgomery committee). This can play an important role in pinpointing areas that need attention–including the reluctance to report or specific groups where violations appear to be more common.

  94. IO–one more thing, Title IX does not define a protected class of musicians–so unless you can tie any public verbal abuse of the band as a whole (and frankly, what I have seen has been pretty thin if not non-existent) to the status of the band’s religion, ethnicity, gender, age and so forth, I don’t think you will find any coverage under Title IX. But, stranger things have happened. Waters is using Title IX to claim discrimination as a male. I don’t think it’s going to fly, but then as I said, stranger things have happened.

  95. @Out of the box – Once again you are making the mistake of stating subjective opinion as fact.

    You said, “So, with regard to the specific complaint, regarding a hostile environment that was overlooked by Jon Waters–as a representative of the university, the Compliance Office report, using a preponderance of evidence standard, found that such did exist.”

    What was hostile? You look at the evidence and conclude “hostile”. Yet thousands of band members past and present conclude “it’s not hostile”.

    As has been said before an environment of gay people expressing pride in their sexuality was seen as hostile by the majority of society in their subjective opinions many decades ago. And we know it was just in their subjective opinions because today the same behavior of gay people expressing pride in their sexuality is NOT hostile.

    All the Glaros report has done is provide a plethora of “evidence” presented in a way to SHOCK those who hole the subjective opinion that what was going on was hostile. This does not produce a fact of a hostile environment.

    Without evidence of law being broken, all the school has done is vilify thousands of student for legal behavior by adults. Is it immature behavior? Yes, but legal none the less. And hostile only by subjective opinion.

  96. Rob–according to OCR, the means of evaluating hostility is both objective and subjective–and as I pointed out, they use the “reasonable person” standard. Most reasonable people would agree that utilizing the image of a menstruating woman to characterize a sports rival is hostile to women. Perhaps you are able to cite some specific evidence of the “thousands of band members” who believe otherwise. All that I am aware of is the recent Alumni survey, with a less than 20% return rate, coming up with the astonishing conclusion that the overwhelming majority of the alums have graduated college–and some have gone on the graduate school. And for they most part they are employed in professions. Not only did the survey, as reported, not touch on the topic of harassing behavior, there is no indication of who was actually polled. Were these drawn exclusively from the dues-paying roster of TBDBITL Alums, or do they have access to the wider group of everyone who has ever participated in the band.

    Now–one does not need representative sampling to assert that a thing (nicknames, Midnight Ramp, songbook, specific instances of hazing, etc) happened. But when it comes to asserting that something is a generalized opinion (such as the “nobody thinks this was harassment”), this DOES require some sampling methodology. And based on such, the alum’s methods are not sufficient to ensure a reasonably unbiased outcome.

  97. Oh, BTW, the population of the band being overwhelmingly male does not help to support the reliability of their judgment.

  98. Mr. Box,

    This is like playing whack-a-mole. Every time I offer a particular point you ignore the point and raise the same old issues again.

    Like the “binge drinking”. I didn’t ask where you heard about it, I asked where it was mentioned in the case that OSU had against Waters. Because without that link, it’s just more baseless slander, not any sort of evidence that Waters should have been fired. I suspect the reason OSU didn’t include such an allegation is that Waters clearly has zero legal responsibility to curb the drinking of adults not under his supervision.

    You make this same mistake when you mention the assault case that you keep claiming shows actual harm. You are ignoring my primary problem with this whole thing – “sexualized” cultures don’t cause assaults or harassment. You’d just as well blame a rape on a woman’s clothing, as on a propensity for either party to tell dirty jokes. On the other hand if you mean her decision to not return to the band represents actual harm, you are ignoring the fact that after the assault was reported, it becomes OSU’s responsibility, not Waters’, to come up with a solution on that issue.

    And you make this mistake again with the songbook when you say “some things are obvious on their face”. You are ignoring again the fact that it really matters when and where (and IF) any of these songs were sung. A song that’s sung where you can’t hear it can not create a hostile environment for you. A song in a book that is never sung can not create a hostile environment for you. A songbook that exists somewhere in the world can not create a hostile environment somewhere else in the world.

    Regardless of what you think is obvious, Ohio State had to show that this environment existed during regular band hours, and to a degree that it affected participation or benefit, and they did not show that. They showed no impact whatsoever on participation or benefit. And they made no direct reference to the songbook in terms of its usage during band hours. As a lawyer might say, it’s inclusion was entirely prejudicial, and not the least bit probative.

    It’s galling to me that nobody notices the most obvious thing of all about the songbook: if Waters was bad because he failed to block the private distribution of the songbook (constitutionally protected free speech by the way), then why was it OK for Ohio State to publish this previously private document to the entire world? Waters “mistake” in failing to collect every existing songbook and burn them was passive, while Ohio State’s mistake was active: distributing the songbook on a far grander scale than the band ever did.

    Finally, you’re really going to raise the gender balance issue? The gender balance of OSU’s band matches almost exactly the gender balance of brass and percussion sections of other big ten bands. This isn’t just some hand-wavey distraction. It’s an objective numerical analysis. I consider that very acceptable evidence that demonstrates the bands’ LACK of bias, and LACK of a hostile environment.

  99. Hmmm, just found the retreat itineraries for 2012 and 2013 band leadership. This is where Waters claims to have provided enhanced training for his squad leaders on culture-related issues. For each year there was a scheduled “open discussion” of harassment, discrimination and drinking. This just backs up the impression that I had from reading Waters’ own account of actions taken to improve the culture, which is that he hadn’t truly done much that would bring about meaningful change, even though he may have reacted to some instances of things. And he was dragging his feet about producing the account because there was so little he could report that would cover him. It struck me that while he claimed that “training” had occurred during the retreats, there was no mention of by whom and no syllabus or anything attached. Perhaps Waters would be better off if his “friends” stopped speaking up on his behalf.

  100. @Out of the Box – Supreme Court decisions and the guidance of the Department of Education have given the interpretation of 20 U.S.C. § 1681(a) a broad scope so that environments sexual harassment and sexual violence are considered hostile, and failure of the school to respond and remedy the environment are violations of Title IX.

    This is why the OCR was investigating OSU as a whole, as 87 complaints of sexual assault in a two year period where the majority of the complaints were mishandled by OSU is a textbook example of a hostile environment where the school is failing to respond and remedy the environment. OSU was in violation of Title IX, hence the need for OSU to bargain for an out of court settlement.

    You however are saying that “hostile” goes beyond environments of sexual harassment and sexual violence because “hostile” can be subjectively defined to include anything a reasonable person would conclude is hostile. That’s a complete misapplication of the subjectivity. The subjectivity is what any reasonable person would conclude is sexual harassment or what any reasonable person would conclude is sexual violence. If reasonable people would conclude an environment of sexual harassment or sexual violence are going on, AND the school does not respond and remedy, THAT is a violation of Title IX and how the Supreme Court and Department of Education allow that conclusion to be subjectively reached.

    Your position that “hostile” goes beyond sexual harassment and sexual violence is what leads to the ridiculous thought process that things like adults legally choosing to march in their underwear at midnight is “sexual” when that couldn’t be farther from the truth. And when the truth is accepted that it’s not sexual, then the accusations that people were required to do it get thrown out.

    Let me tell you what I was required to do for Music 186 (that’s what the 2 credit hour class was called back in my day).

    1) I had to attend rehearsal from 4 pm to 6 PM Monday through Friday for approximately four months.
    2) The day before each football game performance I had to pass music checks to show that I could play the music from memory.
    3) The day of each football game performance I had to be in full uniform and be inspected to see that I was wearing it properly and cleanly.
    4) I had to be present in full uniform and perform at every scheduled event for the semester.

    If I did all these things without fail, I would get an A in the class. In five years I got four A’s. One year I got an A- because I skipped a game to attend my brother’s wedding, and did not document the excuse properly.

    There was nothing, absolutely nothing that Dr. Jon Woods required of me to get that grade.

    Did I see a lot of what occurred in the Glaros report when I was in the band? You bet I did.

    Did my participation or unwillingness to participate in any of it have anything to do with my grade for the class? Absolutely not!!!

    If you want to accuse people in the band of sexual harassment and/or sexual violece, then find someone who wants to claim they are a victim of it and put the “reasonable person” test to the evidence of such. If you can find enough band members to file numerous complaints of it, and show how the school failed to respond and remedy them, then you could meet the Supreme Court and Department of Education’s “hostile environment” interpretation of Title IX.

    We know of three complaints of sexual assault. Were they responded to and remedied? Yes. That is not a “hostile environment” applying the Supreme Court and Department of Education
    broad interpretation of Title IX. You’ll need far more than 3 complaints of sexual assault, and failure to repond and remedy them.

    The complaint in May was neither a complaint of sexual violence, nor of sexual harassment. The person filing the complaint in May had no grounds to file either, given she was not a member of the band and as such had no possible way of experiencing sexual harassment or violence. Her complaint was that the band has a “sexualized culture”.

    While the Supreme Court and Department of Education use the “reasonable person” test to determine sexual harassment or sexual violence to conclude a hostile environment, that does NOT mean you can do the same to determine “sexualized culture” to conclude a Title “hostile environment”. Doing so is a complete misapplication of the Supreme Court and Department of Education broad interpretation of Title IX.

    However, what could be done with “sexual culture” complaint is potentially uncover sexual harassment that is occurring that is not being reported. While the “reasonable person” test can be used to determine what is and is not sexual harassment, sexual harassment is limited to “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”. The key being “unwelcome”. So even if a reasonable person looks at all the evidence in the Glaros report and based on the evidence alone concludes it to be sexual harassment if all the evidence occurred was “welcomed” then its NOT sexual harassment despite the shock value of the evidence.

    And this is where the Glaros report falls apart, because numerous band members who’s nicknames were given as evidence came forth and said they welcomed their nickname. Despite how shocking a reasonable person finds the nickname to be, being that it is a welcomed nickname it is not sexual harassment, nor is it sexual violence, and the “hostile environment” Title IX argument completely falls apart.

    Yet I’m sure you will continue false application of subjectivity/hostility/Title IX because you want to keep receiving your paycheck from the University. Your argument however falls flat on its face in court, where this is going.

  101. Mr. Fine–perhaps you might like to go back and look at the Marc Dann scandal for some examples of ways in which out-of-the-office sexualized atmosphere impacted other workers WITHIN the office. And review some things about uneven power in terms of the ability to say no to various “voluntary” associations.

    Free speech has always had limits, and never has it been guaranteed that free speech be free from consequences. You may be perfectly free in announcing to the world that your wife is an ugly shrew. However, that doesn’t mean that she is prohibited from divorcing you when she has had enough of it. Further, I would imagine that it matters little whether a song is sung or merely printed out and distributed (with the name of the band on it).

    In fact, Mr. Fine, sexualized cultures DO lead to both rape and harassment. Consider some of the most repressive cultures in the world as regards women. In these cultures, rape is far more commonplace than it is in more respectful (of women) cultures. While stranger-rape is to be feared, acquaintance-rape is far more common. Not only do women need to be educated to recognize this when it occurs and to realize their legal rights, but men also need to be aware of where the legal boundaries are drawn. Both genders need to be aware of the role of drinking in producing both vulnerability, but also diminished capacity to make wise decisions.

    But–you did not answer the question I asked. What evidence of “harm” would satisfy any of you defenders?

  102. Rob–A Title IX complaint may be filed by various persons, including a parent. The complaint filed in May was in fact a valid complaint.

    We have–from the reports–three allegations of sexual assault. One was bungled–and as a result of the Compliance Office intervention, there was a recommendation that Jon Waters receive training. One–which has apparently come to light since then, was not reported, and the one that sparked the complaint was reported to the University by Mr. Waters. Now, regardless of who else might have participating in the bungling of the one report, Waters had the opportunity and the recommendation to enlighten himself with regard to what does and what does not constitute an appropriate response. And he failed to do so.

    As one of the concerns of the OCR currently has to do with practices of various universities that tend to discourage reporting of incidents of assault, and OSU was no different, it is hard to make the case that there were NOT additional cases for which there is no paper trail.

    Further, it is laughable to keep insisting that marching in underwear at midnight has no sexual overtones to it–even after the aspect of drunkenness is removed.

  103. @Out of the box – focusing on the three sexual assault cases is FAR more productive in establishing a Title IX “hostile environment” argument than anything else the university has thrown out to the public. It would be highly productive by both sides if it was agree to determine if these three are enough to establish a “hostile” environment.

    Whether three is enough incidents to establish a hostile environment depends on the amount of people in the environment. And given at least one of the incidents happened within the basketball band, the number of people to be considered exceeds the 225 marching band members each year. I was in the basketball band too back in the Jimmy Jackson days, and there were around 400 that signed up in those years. We would divide the class up into groups and each group only got to play at a fourth of the home games. So over two years, considering marching band and the winter and spring athletic bands you are now consider 3 from a pool of hundreds (close to a thousand) students.

    I’m not saying 3 incidents is NOT enough to establish a “hostile environment”, I’m saying it has not been established that three IS enough. Again, it would be highly productive by both sides if it was agree to determine if these three are enough to establish a “hostile” environment.

    The problem is the university from the very start has decided it doesn’t want to do that. Instead of determining if enough incidents of sexual harassment and/or sexual violence exist, the school has decided instead to claim “hostile environment” by throwing out a slew of examples of student behavior and using the “reasonable person” test. Now as I said before, this could be a productive method if the goal is of proving incidents of sexual harassment that are not being reported. It is however completely unproductive if the evidence to apply the “reasonable person” test of sexual harassment is evidence that involved willing people. Because sexual harassment is limited to “unwelcome”.

    Without the ability to use anything the university has thrown out to establish more cases of sexual harassment or violence in addition to the three mentioned above, it’s all worthless in regards to how the Supreme Court and Department of Education have broadened the scope of Title IX to a “hostile environment”. It’s all just stuff people will have a subjective opinion about, but is perfectly legal behavior for adults to do. Immature? Yes. But they are immature adults.

    And by commenting that is laughable that midnight ramp has no sexual overtones, you are showing just how biased and closed minded you are regarding all of this. I did Midnight Ramp five times, and I see far more “sexual” images at beaches and swimming pools where people wear bikinis and speedos in the bright sun at high noon then I ever saw in the dark at midnight where people wear underwear. In addition, many university’s have “undie runs”, including Drake’s former employer. In fact, a student at Cal Irvine who wanted to participate in the school’s “undie run” had to register for it on the schools website. Underwear != sex.

  104. Mr. Box,

    The evidence of harm is obvious. You need an actual person who claims that the environment made it impossible for them to participate (i.e. they left the band mid-season), or impossible to benefit (i.e. they participated but did not learn anything, I suppose). And with that person in hand, you apply a reasonable-person test to make sure that they didn’t leave the band simply because they didn’t like it.

    The irony in this is that many of the most serious allegations in the investigation report came from fourth and fifth year members of the band. Why would they stay in the band so many years if the environment was so hostile that they could not participate or benefit?

    Your example of free speech limits is non-sensical. My wife can divorce me because she doesn’t like the marriage, but that doesn’t mean I did any thing criminal. The actual limits on free speech are harm. Fire in a crowded theater. Or in this case, an environment so severe that a reasonable person would find it impossible to participate or benefit. Not just whether or not they didn’t like the content of the speech.

    As far as sexualized cultures – you’re claiming that REPRESSED cultures lead to commonplace rapes? So by that logic, shouldn’t a highly sexualized culture be the safest place to be? You’re really not making any sense here.

    As far as Marc Dunn, that doesn’t apply at all – superiors making repeated unwelcome sexual advances?

    And again you make a claim that a sexual assault or harassment case was “bungled”. Ohio State has made no such claim. You’ve also missed the story I guess where former Title IX coordinator Andrea Goldblum stated that her boss blocked her from communicating properly with Waters? Ohio State is more culpable than Jon Waters for any training he did or did not receive that the University expected from him.

    Did midnight ramp have sexual overtones? Human existence has sexual overtones. But the actual point is that midnight ramp was not “sexualized”. It was a chance to confront issues of performance anxiety. Marching in front of 100,000 people is scary, and for some band members, the option of marching part of a show in your underwear while remaining focused on the job is a good test run to confront your performance fears. A similar story worked out just fine on the Brady Bunch, and nobody got fired for that.

  105. @out of the box – I will also add that with 87 sexual assault incidents occurring at OSU as a whole in a two year period, a good argument can be made that all the students Jon instructed over two years produced 3 incidents because they attend a “sexually hostile” Ohio State environment.

  106. Rob–again. Consider the preponderance of the evidence. There are MANY incidents and practices. And as I have pointed out before–even if Joobs, Tiggles and Donk found their nicknames to be inoffensive (at least up until the point at which they were published in the report–even though it did not link the names with any individual), they were not the only ones impacted by them being referred to as their body parts. And the simple fact that they claim some distinction between being referred to in that way within the band as opposed to in public really calls into question their claims that this was really, really all right with them.

    Add that to the underwear march, the videos, the tricks, the groping, the misogynist lyrics AND the sexual assaults and their handling–not to mention Waters’ assessment that if certain activities (such as Midnight Ramp) were officially cancelled, that students would continue it underground, and it is reasonable to conclude that this was a cultural issue, rather than one of “bad apples.”

    BTW–you most likely don’t want to hear about some of the things that “everybody” was doing when I was an undergrad–but the refusal to allow women to audition for the marching band was simply the tip of the iceberg. Many women faced down the choice to put up with a bunch of stuff from men in charge, or give up their education/employment goals. Where you err is in equating the choice to be a part of the band with acquiescence with a whole lotta mess. You are overlooking one critical question which is what is the cost of seeking a middle road, that is, being in the band without exposure to the mess? For one answer, try reading up this thread–which responds to a woman musician. She was belittled and rude accusations of jealousy were made because she dare to express an opinion that deviated from the TBDBITL party line. And that was in full view of a reading public. Imagine what goes on elsewhere.

  107. Ummmm, Mr. Fine, I am not aware that there are any criminal charges against Mr. Waters.

  108. Mr. Fine–there has been a good bit of research into the harms of hazing and assault on campus. And many of the behaviors that have been recounted fit the research definitions of hazing and assault. The fact that they also have sex or gender-based elements brings them under the umbrella of Title IX. We don’t need to do a longitudinal study on every band participant in order to determine they should not continue.

    And as far as the “single person,” well, the band member whose mother complained is that single person.

  109. There was a good bit more to the Marc Dann case than unwanted advances. There was also hiring and promotion of young women based on barroom acquaintance. While it did affect those women down the road when they were no longer in their boss’s favor, it also affected not only the overall morale, but also competent employees who never had the opportunity to apply for positions.

    Further, while unwelcomed advances is ONE element of a hostile environment, it is not the only one. Courts have made findings of hostile environment based on the posting or circulation of a variety of offensive materials (jokes, pictures, etc) or other behaviors (putting a variety of things into someone’s locker, or their car, emailing them and so forth). It would be interesting to confidentially survey the women band members about whether they found any of the lyrics in the band song book to be offensive.

  110. @Out of the Box – I have considered all of the “evidence”. As I said before, whether it’s 10 incidents of immaturity, 100 incidents or 1000 incidents, the AMOUNT does not make a different if all the incidents are LEGAL behavior. Just because it’s immature behavior doesn’t mean a LARGE amount of it is any different than a SMALL amount of it. What you have to do in order to make ANY of the incidents have any value to an argument of a “hostile environment” as defined by Title IX and the Supreme Court/DoE broad interpretation of Title IX is show incidents of sexual harassment and/or sexual assault. Showing any number of immature behavior does not lead to a conclusion of a “hostile environment” according to Title IX/Supreme Court/DoE.

    As to Joobs, Tiggles and Donk, they have countless times said that their issue of how they were presented to the public was how the University portrayed them as victims. This just adds to the argument that I have made countless times in this thread, and you just continue to ignore (because you are paid to argue for the university) that the university is relying on “shock value” by the public. The nicknames are not sexual violence. They could be sexual harassment IF they were “unwelcomed”. The fact that Joobs, Tiggles and Donk have all stated they welcomed their nicknames eliminates the possibility that these are examples of harassment. Thus none of it are incidents of sexual violence or harassment, even with the subjective “reasonable person” test.

    I agree with you that a lot of what was in the report was done “underground”. The songbook is a perfect example. I never saw a songbook. The closest I ever came was when fellow band member said he had one and asked if I wanted to see it. I declined. And I declined because Dr. Woods had told us all that corrective action will follow anyone found in possession of one. So I chose to stay away from it. My fellow band member chose to have one. Why? Because he’s an immature adult. He chose to do something stupid, and to my knowledge never got caught with it.

    Another example is something that occurred during my years that was not in the report, called “Phantom Pep Band”. Band members would get their instruments one evening during Michigan week, and tour the campus playing songs like “Pied Pipers”. This of course produced a crowd of people following them. One year it went down College Ave when an expensive car (a Jaguar or something) approached going the opposite direction. One of the band members marched right on to the hood, over the windshield, over the top of the car, on to the trunk and then back on to the road without ever moving an inch to the left or right. The following day Dr. Woods heard from the owner of the car, who obviously being pretty rich, had great influence at the university. From that day on, Woods said corrective action would follow any band member ever doing Phantom Pep Band again. The following year, band members did it again. Did I participate? No. But others did. Why? Because they were immature adults. And band members did get caught. Those that were caught were suspended by Woods. Which by the way, when Woods showed up to catch the band members, they scattered. Some ended up over by Mirror Lake and decided to march and play right into the middle of it because Woods wouldn’t go into the water to get them. This is how the Mirror Lake jump tradition was born.

    The point that I’m making here is that the “culture” you speak of is a “college culture”. As I’ve said countless times before in this thread (and again you continue to ignore because you are paid to) my experience at Ohio State in quarters when I did not do marching band was the same as the quarters I did. I did course work and made friends with students from all my other classes too, and when we weren’t doing coursework we did stupid and immature things too. And NONE of the professors we had were responsible for any of it, despite us being in their class together. We could have gone to the computer lab and printed a “OSU Math 151 Songbook” with raunchy songs. Would you fire the professor of Math 151 if we did that? Why? We could have overturned dumpsters and set couches and cars on fire after an OSU football game. Would you fire the Math 151 professor because we were all together in their class? Why? We could have called each other nicknames, made videos and calendars, etc, etc… and all said this is being produced by “the students of OSU Math 151”. Do you fire the Math 151 professor because we chose to be immature adults and do that? Why?

    You can’t just list immature behavior of college students and claim “Title iX hostile environment” and fire the teacher(s) of the students for it. You MUST show an environment of sexual harassment and/or sexual violence. All the Glaros report did was list a lot of college students being college students looking for “shock value”. That alone fails to show how any of it is sexual harassment and/or violence. This is why the report was careful not to call any of it either of those labels. It instead chose to call it a “sexualized culture”.

    A gay pride parade is a sexualized culture. A gay pride festival is a sexualized culture. Are those negative things? Do you really want to go on record saying that gay pride activities? I’m sure you don’t. You’re not the stupid.

    So if a “sexualized culture” could be a positive, negative, or neutral, the Glaros report by establishing a “sexualized culture” (and again failing to establish how all those examples are sexual harassment/violence) it hasn’t established whether it’s positive, negative or neutral.

    College and sex…. say it ain’t so Joe. Say it ain’t so!

    All the school has done with how it has handled this is to show that it does not know how to run an organization made up of 60,000 immature legal adults. They expect their teachers to be responsible for the behavior of their students 24/7/365, yet the students will disobey the teachers even with threats of corrective action, because they’re immature adults. It’s not Waters who should be fired for failing to meet the expectations of the administration. It’s the administration that should be fired for expecting the student body and teachers to be something they are not.

  111. Mr. Box,

    The mother was not harassed, and has no bearing. If her daughter was harassed she should have said so. Further, According to OSU, they did not bring a complaint, they reported information which OSU treated as a complaint. So again, we have a claim from OSU that a hostile environment exists, which by definition means that someones’ participation or benefit was harmed. And yet OSU does not have one single person claiming this is the case. They only have the slander that the band was “sexualized”.

    I still fail to see what Marc Dunn’s situation has to do with the band. Employers and hiring has nothing to do with peers in a band together.

    And yes, you keep mentioning that all these things OSU alleges would be a hostile environment in a workplace. It’s that thing you keep doing where you ignore one part of the argument to make a point. As has been said repeatedly, these things occurred primarily after hours outside of band. They were easily avoided by those who found them offensive or even merely undesirable. And therefore had no impact on anyone’s participation or benefit. It’s that whole easily avoided thing that is important here, and also why the above Marc Dunn case is so irrelevant.

  112. So, what is the likely outcome of the lawsuit?

    While the initial investigation was started from a Title IX complaint, I don’t think OSU has to prove illegal actions were taking place in order to legally fire Mr. Waters.

    However, I think that has to do with whether or not Mr. Waters was truly an “at-will” employee. I’ve read that government workers are not “at-will” employees. There is some confusion as to whether this applies to all employees of Ohio State. If it does, then wouldn’t all “at-will” employment agreements written by Ohio State be incorrect?

    If “at-will” does apply to Mr. Waters, I do not see how the university could be forced to give him his job back. At best, if it is determined OSU’s statements about Mr. Waters are untrue, the court system could award him money.

    It looks like Mr. Waters lawsuit does site this point (that he is entitled due process), but it does not flesh out the argument that the “at-will” employee agreement is not valid.

    OSU’s response seems to weigh heavily on this fact, siting “at-will” at least 16 times.
    “127. Deny Mr. Waters, an unclassified, at-will employee, had any protected property
    interest in his employment or was deprived of any procedural or substantive due process
    requirements. Defendants state any due process requirements are imposed by the United States
    Constitution. Further answering, defendants state they are without knowledge or information
    sufficient to form a belief as to the truth of any remaining allegations contained in paragraph 127
    of the Complaint, and therefore deny the same.”

    It sounds to me like much of the case hinges on whether “at-will” at Ohio State is valid or not. And, if it is successfully established that “at-will” does not apply to OSU employees, it would have further effects throughout the entire university (and other Ohio state-associated institutions).

  113. At-Will-Employment

    @SeekTU_buckeye, here is an article that may help people understand the “At-will-employment” laws in Ohio. I am not a lawyer, so I don’t know exactly how to interpret this, but I could see Jon’s attorneys saying OSU did not have a just cause. Also, Jon was serving in the capacity of a faculty member by every definition of the word, but without the contract. This could be an example of OSU violating the “Implied Contract” exception.

    http://www.bls.gov/opub/mlr/2001/01/art1full.pdf

    My interpenetration of the three exceptions to At-Will Employment detailed in the article are:

    1) Public Policy Exception (Can’t be fired for an action that support’s the State’s Public Policy)
    2) Implied Contract Exception (Verbal, written or implied contracts of employment can be enforced)
    3) Covenant of Good Faith Exception (Employer must show “Just Cause” for termination)

  114. OSU is an equal opportunity emoloyeer so even if Mr. Waters is an at-will employee he can be fired for ANY reason. He obviously could not be fired for gender, religion, age, etc. Some legitimate reasons would be poor job performance (which according to his performance reviews was clearly not the case) or doing something illegal (which was not the case). The only reason we are given by the OSU administration is he allowed a “sexualized culture” to exist. Mind you this culture is no more sexualized than the culture in general. It seems like a lawsuit that OSU is sure to loose and deservingly so.

  115. @At-Will-Employment

    Thanks for the link. If Mr. Waters signed a contract that explicitly stated it was “at-will”, and clearly stated what that meant, I wouldn’t think it would fall under the Implied Contract Exception. I could very well be wrong. I think the courts ruling on “at-will” will ultimately play a big part in where this goes.

    Does anyone know why the contract was “at-will”. Are all athletic coaches “at-will”? Was Dr. Woods “at-will” ; I really doubt that. I think Dr. Woods was a tenured faculty. Is it the case that Mr. Waters was given an “at-will” contract because he was appointed by President Gee, and that was the needed avenue to make it happen rather than having to go through an official national search interview process to fill a tenure-track position?

  116. Actually, John, OSU lists two reasons, that Waters knew or should have known about issues in the band, and second that he was not forthcoming during the investigation. The investigation made clear that the band had issues that needed to be changed. Waters’ behavior throughout was instrumental in convincing the U that he was not the right persont o make the changes. Business–not personal.

    Regarding at-will employment, Waters was not classified, hence no union contract. Nor was he a tenured prof, or some other big dog (like an athletic coach) able to bargain for protections. Thus, he gets the standard package–which allows an employer to fire for ANY reason–except the few with categorical protections in law–age, gender, disability, religion, national origin and the like. Hence, Waters’ claim of gender discrimination. Should be entertaining if it gets to court.

  117. Mr. SeekTU_buckeye,

    I find it interesting that, while OSU says he was told his employment would be at-will in a letter, I see nothing that says he signed a contract in which that was stated. Apparently his job was a staff job rather than a faculty job. He had no PhD. yet. But according to OSU’s rules you can be an instructor (which counts as faculty) at OSU without a doctorate. So I’m not sure why he had a staff position. He taught classes, but also had administrative duties, with a staff member under him. And also grad assistants under him. I have to wonder if he acted at all as an advisor to any degree to the grad students, because I suspect for that role he would have to be faculty.

    At any rate, this is all a side issue to some degree. The 14th amendment says that states can not deprive individuals of life, liberty, or property without due process. This has long been held to apply to the relationship between state employers and employees (OSU and Waters). The “at-will” status is meaningful because of the “property” part of this amendment. For a tenured faculty member, the job can be considered property, and depriving them of their job is depriving them of property. For a purely at-will employee, it can’t be considered property. There are reasons why his at-will status is not as clear cut as OSU is claiming, as discussed above.

    But the reason I say it is a side issue is that in addition to his property claim he has a liberty claim. It’s well-established by tons of case law that liberty includes career and job choices, and its also well-established in state law that if an employer makes public an employee’s reasons for dismissal, this is sufficient to affect their liberty. There is a fair amount of debate over exactly where this line is, but the grey area that’s often discussed is several cases where the state’s disclosure amounts to information added to their official employment record and nothing more. In Waters’ case, they published and publicized the investigation report, and the president of OSU created a youtube video where he explained to the world (and in particular the press) the alleged reasons for Waters’ dismissal. Additionally, it’s well-established how much he loves this line of work, and there can be no doubt that this publicized scandal will have a severe impact on his future employment. Compared to the established case law for due process owed on the basis of liberty, this case may be the most obvious and egregious case anyone has ever heard of. It’s a slam dunk.

    Google this for more info: crytzer george mazon law review pdf

  118. Mr. SeekTU_buckeye,

    I realized I only addressed part of the issue. The property interest versus the liberty interest in his claims could have an impact on the outcome. If he can get past OSU’s at-will claim and establish that he had a property interest in his job, my guess is that could have one of two effects. One is it could make the judge much more likely to reinstate him. The other is, that it could make the judge urge him to accept a large cash settlement.

    The liberty interest on the other hand, is more likely to be remedied by a court-ordered name-clearing hearing. Of course a cash settlement would work here too, if Waters wanted to agree to it, because cash settlements always work. But if Waters is insistent that it’s not money he’s looking for, he’s almost certain to get a hearing on the liberty claim.

    But if Waters does get sick of all of this and decide to take the cash, I’d expect a mammoth settlement. 20 to 50 million. Remember that Waters was by far the most famous marching band director in the world, and brought in 30 million in revenue JUST in the iPad advertising deal with Apple. He can claim significant potential future earnings on his career of choice.

  119. In Ohio State’s court document in response to Mr. Water’s lawsuit, it refers to several Appendix or Exhibits, but they are not part of the .pdf file. Does anyone have a link to a document that has those extra exhibits? One is the letter stating his job is ‘at will’ another is a correspondence offering Mr. Waters a name clearing hearing. Plus there are several others. Anyone have a link to those?

  120. As far as I know, those have not been disclosed. They might be accessible by a lawyer with PACER access. Although you’d think that if that was the case these documents would already be out there somewhere.

    It is interesting though, that out of all of those exhibits, the only one that ended up pubic so far is the calendar. Almost as if OSU used the court filing system to publicize something that they otherwise wouldn’t be able to make public.

  121. “The 14th amendment says that states can not deprive individuals of life, liberty, or property without due process. This has long been held to apply to the relationship between state employers and employees (OSU and Waters).”

    Mr. Fine–you have now made this claim at least twice. Perhaps you would care to provide a legal citation for it? In fact, the only due process claim accorded state (or any other employees in Ohio or most of the country) derives from a union or individual contract. And while I do not–as some here have asserted–work in any capacity for the University, I have certainly known a good many people employed by state universities or in other capacities working for the state. Some are classified and some are at will. At will employees are particularly vulnerable every time there is a new Governor. And there is NO guarantee of Due Process.

    The liberty question is interesting. However, I would imagine that OSU’s legal team will point out that Waters was offered the opportunity to resign–and beyond that to back up their assertions that Waters “knew or should have known” and that he was not “forthcoming” with such evidence as has already been made public–some of which has been inadvertently reinforced by his supporters. Further, I would expect that they have recordings or transcripts of each and every interview. So if the court accepts that particular argument I would expect things to get much worse for Water before there is any hope that they might get better. End of the day, I don’t know if he has enough solid anything on his side to support a claim for unemployment. And his own choices have certainly damaged his future employability. Perhaps he might have done better to consult with some women who have contemplated gender discrimination claims in situations much more clear than his own.

  122. Mr. Fine–regarding the mother’s complaint, consider the following guidance from OCR (covers some other issues as well):

    A school can receive notice of sexual violence in many different ways. Some examples of notice include: a student may have filed a grievance with or otherwise informed the school’s Title IX coordinator; a student, parent, friend, or other individual may have reported an incident to a teacher, principal, campus law enforcement, staff in the office of student affairs, or other responsible employee; or a teacher or dean may have witnessed the sexual violence.

    The school may also receive notice about sexual violence in an indirect manner, from sources such as a member of the local community, social networking sites, or the media. In some situations, if the school knows of incidents of sexual violence, the exercise of reasonable care should trigger an investigation that would lead to the discovery of additional incidents. For example, if school officials receive a credible report that a student has perpetrated several acts of sexual violence against different students, that pattern of conduct should trigger an inquiry as to whether other students have been subjected to sexual violence by that student. In other cases, the pervasiveness of the sexual violence may be widespread, openly practiced, or well-known among students or employees. In those cases, OCR may conclude that the school should have known of the hostile environment. In other words, if the school would have found out about the sexual violence had it made a proper inquiry, knowledge of the sexual violence will be imputed to the school even if the school failed to make an inquiry. A school’s failure to take prompt and effective corrective action in such cases (as described in questions G-1 to G-3 and H-1 to H-3) would violate Title IX even if the student did not use the school’s grievance procedures or otherwise inform the school of the sexual violence.

  123. Mr. Box, with all due respect, I am beginning to think you are incapable of seeing the big picture and are simply going to endlessly nitpick details out of context, as that’s pretty much all you’ve done so far. i raised the issue of the mother bringing the non-complaint that was not about any violent situation in the band to show how distant we are from having even one complaint from anyone who claimed that their participation or benefit was affected by the alleged hostile environment. Yes, she reported information, and it was valid for the university to treat that as a complaint, and it was valid for the university to investigate. But her claim does not establish any evidence of a hostile environment. And OSU failed to establish any evidence of a hostile environment either, except to those who can’t figure out that the “sexualized” slanders OSU has brought don’t actually provide any evidence of any wrongdoing.

    So I’ll repeat my primary point for the umpteenth time. OSU, in order to show a hostile environment HAD TO show that someone’s participation or benefit was affected. They failed to do that. The cases which led to this investigation, while tragic and serious, are not themselves evidence of a hostile environment, nor are the grounds for Waters’ firing.

  124. Mr. Fine–I just went through the document that you linked reviewing the liberty question. I do not see a case that is precisely on point. A number of cases have dealt with placing memoranda in an employment file–with decisions about likely vs actual publication–presumably through directly sharing such with potential employers requesting references. What I do NOT see is a case in which the employee is a public figure of Waters’ stature (which legally makes a difference) and in which dissemination occurred through a public document compiled for another purpose. There is something of a suggestion of similarity should a public entity make an inflammatory charge with regard to an employee let go (such as that they were a communist). We have to documents here–one is the report of the Title IX investigation–a public document, which did not touch on Waters’ future employment. (further, I believe that there was an appeals process available to Waters vis a vis that investigation that he did not access). Then there is the OSU statement with regard to the firing which has consistently articulated two things: that Waters knew or should have known of a variety of band behaviors and that he was not forthcoming during the investigation. SHOULD the court take this case on as a liberty case (and I’m not certain that is the direction that his attorneys have taken–opting instead for the gender discrimination protection), I would imagine that one linchpin would be whether these two statements are 1. true and 2. inflammatory. And then there would have to be some consideration of whether Waters has suffered harm as a result. And I would suggest that his status as a public figure might have provided something of a counter to a claim of harm. For instance, he had access to national television interviews in which to make counter-claims against the University–something most public employees lack. And certainly the question of his actual efforts at seeking employment would come up.

  125. Mr. Fine: you keep making a claim regarding the “legality” of “immature” behavior. In fact, context can have a bearing on the legality of various behaviors. Possession of a calendar with naked women is legal. Posting it over one’s desk in the workplace may contribute to a hostile environment. There may be nothing in the law proscribing engaging in a “flying sixty-nine.” However performing such, or coercing others to perform such on a bus full of students being transported for a class-related activity is likewise a piece of creating a sexually-related hostile environment. As are such activities as coercing first-year students to run to the back of the bus while their clothing is being remove by other students, arranging for stand-up introductions inclusive of off-color jokes broadcast on that bus, or playing games like find the dildo–again on that same bus. That Mr. Fine is the big picture. That willing or unwilling, all students were subjected to these things being openly carried out–in addition to anti-gay, anti-Semitic and misogynistic songs (whether sung or read), the underwear marching, the tricks and offensive nicknames and the binge-drinking parties, which may have occurred more on the fringes–providing a somewhat more optional character to them.

    It is time for the Marching Band–along, I am certain, with other segments of the University–to grow up and stop accepting “immature behavior” as the norm–particularly when it is strikingly misogynistic (or anti-Semitic, anti-gay, etc) in nature. And Mr. Waters–however great he may be as a choreographer and publicist–was not the leader to take them there. These are the sum of the allegations against him. Presumably he could pack up his baton and go elsewhere and peddle his considerable musical skills. The question is, why has he not done so? Is he so imbued in some macho sense of entitlement and provincialism that he cannot let go, recognizing that employers are entitled to make choices, and move on?

  126. Yes Mr. Box, immature behavior is legal, and protected by the first amendment which protects freedom of expression. All the way up and until it causes harm. That is the standard. Harm is not annoyance, or discomfort, or being offended. Harm is in this case a situation where it becomes IMPOSSIBLE to participate in or benefit from the program.

    All You have is a long long list of activities, most of which happened after hours, most of which happened before Waters was in charge, most of which are hearsay, some of which are totally disputed, or at best, a years-old story of some single incident exaggerated many times in the retelling.

    You repeatedly confuse the seriousness of the situation with the length of that list. But when you eliminate all those things that are old, and after hours, and just hearsay, the list is so close to empty as to be ridiculous. Someone heard a song on a bus once, and then another time they heard someone else talking about dildos. This is MILES AWAY from anything remotely approaching cause harm to the participation in and benefit of the band program. This is a description of campus life anywhere. Or a description of real life anywhere. The world is filled with things that are offensive to some, but the world is not a hostile environment of sexual harassment.

    But we really don’t have to pick apart that long list item by item until we’ve whittled it down to nothing. And of the few scraps that might remain afterwards, we really don’t have to debate what is and is not serious enough to reach the “participation and benefit” standard of harm.

    We simply have to observe that we have no one who is claiming to have been harmed by any hostile culture.

  127. SeekTU — Yes, Waters’ original hire letter is Exhibit A in the defendants brief. You can go into PACER. It states CLEARLY that the position is an unclassified position, not subject to the provisions of section 124.34 of the Ohio Revised Code. “Accordingly you employment is at-will, and may be ended at any time by either you or the university.” Included in his duties is also “Instill in students the highest standard for their personal conduct, on and off the field…” I suspect that Dr. Woods had a tenured position as he had an earned doctorate and Mr. Waters does not, but that is only conjecture on my part. While Mr. Waters may have been a brilliant director and choreographer, that is not sufficient for this job. Exhibit V is the letter in which the University offered a name-clearing hearing to Mr. Waters, to which he evidently did not reply to. Mr. Waters had requested a hearing that would include being able to cross examine witnesses, which is far in excess of what the courts have mandated.

    Mr. Fine — apparently parents have complained about the hostile culture, so I take that seriously.

  128. Mr. Fine–you might want to take a look at an Amicus Brief filed by the National Women’s Law Center in Roe v St. Louis University for the precedent relating to on- vis off-campus behaviors.

    You may also want to page through the 2001 Guidance from the OCR regarding harassment. Her a a few gems worthy of your consideration:

    “a student may have been able to keep up his or her grades and continue to attend school even though it was very difficult for him or her to do so because of the teacher’s repeated sexual advances. Similarly, a student may be able to remain on a sports team, despite experiencing great difficulty performing at practices and games from the humiliation and anger caused by repeated sexual advances and intimidation by several team members that create a hostile environment. Harassing conduct in these examples would alter a reasonable student’s educational environment and adversely affect the student’s ability to participate in or benefit from the school’s program on the basis of sex.”

    “if a student, group of students, or a teacher regularly directs sexual comments toward a particular student, a hostile environment may be created not only for the targeted student, but also for others who witness the conduct.”

    “A factor to be considered, especially in cases involving allegations of sexual harassment of a student by a school employee, is the identity of and relationship between the alleged harasser and the subject or subjects of the harassment. For example, due to the power a professor or teacher has over a student, sexually based conduct by that person toward a student is more likely to create a hostile environment than similar conduct by another student.”

    “A series of incidents at the school, not involving the same students, could –– taken together –– create a hostile environment, even if each by itself would not be sufficient.”

    “Conduct is unwelcome if the student did not request or invite it and “regarded the conduct as undesirable or offensive.”53 Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome.”

    “Schools should be particularly concerned about the issue of welcomeness if the harasser is in a position of authority.”

  129. Out of the Box, you are really mixing words all around to re-write history and keep “shock value” fire of the public going, aren’t you?

    The mother never filed a complaint about “sexual violence”. Her complaint was that the culture is “sexualized”. The Glaros report never even attempted to classify anything it found as “sexual violence”. The closest anything could even come to such is where the Glaros report said some of the songs in the underground songbook “glorified sexual violence”.

    You are so biased and closed minded about this whole scandal it’s hard for you to not reveal your cards. It’s kind of funny actually.

  130. I believe that what the mother reported on was a sexualized culture supportive of sexual violence. In any case, her daughter reported an incidence of sexual assault (which most would agree is violence) to which the university responded by expelling the perpetrator. However, Title IX requires that Universities take a further pro-active step in working to rid themselves of practices and cultures conducive to such assaults. Clearly had the University failed to respond at all to the assault in the first place they would have been found negligent. However, the further investigation was based on the mother approaching the University suggesting that such a culture did in fact exist and that Mr. Waters was negligent in his response to it. Many of the particulars with regard to the assault are not contained within the report, or are only footnoted in order to protect the victim.

  131. Of course a “sexualized culture” existed. It’s a college. In other shocking news, water is wet, the sky is blue, and Out of the Box is obtuse.

    The question is are there enough incidents of sexual harassment and/or sexual violence to constitute a “hostile environment” according to the Supreme Court/DoE broad interpretation of Title IX law.

    The Glaros report is a classic, as well as an extreme, example of the Fallacy of Irrelevant Appeals. It’s an attempt to sway the listener with information that, though persuasive, is irrelevant to the matter at hand. And it was executed in a way that it is like throwing a ton of stuff on a wall hoping some will stick. This has produced a situation where Waters, and all the band members, former and present, whose reputations are damaged by the allegations, are GUILTY UNTIL PROVEN INNOCENT.

    When pieces of evidence are obviously debunked by the band, the university just closes its ears and says “but look at just how much there is”. All of it can be debunked, but the university doesn’t want to engage in the forum to allow that to happen.

    Patriots died to give us a country where governments could not do this to people anymore. Unfortunately this appears to be a crack in the system.

  132. Rob, I suspect that you, and some others disbelieve that there can be such a thing as a hostile environment related to gender or sex.

    In fact, very little has been factually debunked, as you say. Three women have come forward (to the press) and claimed three of the mentioned nicknames, and to say that they were not bothered by them. As the OCR points out, they were not the only ones impacted by the names. The existence and use of such names creates an environment in which body parts–and particularly those associated with sexuality–are regularly used to identify persons. Waters himself suggested that the practice had continued under his leadership, that he was aware of it and that perhaps half of the nicknames assigned were questionable.

    Much was made of the fact that the song book included in the original report was from 2007–and that Waters claimed not to have seen one since then. Many others also claimed that the songbook was no longer being used or reprinted. However, a student response to the report, intending to be helpful to Waters, claimed that he had confiscated a songbook in 2012. And the University has since located reproductions from later years. Not exactly effective debunking.

    Further, there is the testimony of a University health care worker about behavior on buses and trips, including various games, songs, tricks and drinking to excess. Not only did she witness such behavior, but she also confronted Waters about it and quit her volunteer position over his unwillingness to deal with the behaviors. This is also documented in emails. The only debunking I have seen to this is the claim by one alum that the drinking that she referenced (unclear of the date, however she feared a re-occurrence due to lax attention to the issue) was not actually drinking but rather a combination of fatigue and dehydration. Personally, I believe the person with health care training.

    So–debunked? hardly.

  133. Out of the box (of reality),

    You state “However, Title IX requires that Universities take a further pro-active step in working to rid themselves of practices and cultures conducive to such assaults. ”

    What kind of Orwellian society do you envision that would accomplish this? Is it ok to trample individuals rights to accomplish this state of safety? Do you really believe that a song book or midnight ramp led to these assults??? I find this portion of title very unconstitutional and unrealistic to enforce.

  134. Out of the Box – now you are making a fallacy of ad hominem. I do believe that there can be such a thing as a hostile environment related to gender or sex… but whether or do or I don’t is irrelevant to whether or not the Glaros report proved one.

    The burden is on the school to prove there are enough incidents of sexual harassment and/or violence to show the existence of a “hostile environment” as defined by the Supreme Court/DoE broad interpretation of Title IX if the school is going to accuse the band of having one.

    Proving a “hostile environment” requires showing one example that IS harassment/violence, and then showing another that IS, and another that IS, and another, etc…. until enough examples show the “hostile environment” exists. We agree that the proof can be the “reasonable person” test, when the behavior is “unwelcome”.

    However, this is NOT what the Glaros report did.

    It instead threw out a ton of behaviors that MIGHT be harassment, and expects the burden to be on the band to prove that it’s not harassment, yet ignores the details of examples when they come out and show it’s not harassment, and then goes on to excuse itself from being part of that process to vet it all out. Do all the “victims” of nicknames have to make public statements to the media, or will the school allow them to make testimony in court like should be done? The school says “yeah, we can talk in court, but not in a court that allows our evidence to be cross examined.” That’s BS!

    Again, the songbook is, and has always been, an underground document that lives behind the band leaderships back. It would be no different than the Math 151 students making a document called the “OSU Math 151 songbook” filled with raunchy songs despite the professor of Math 151 telling them that it is not acceptable behavior. Waters, nor Woods, nor any former director, nor any assistant or associate director has ever done anything to keep that book alive, and have all condemned the thing.

    And again, I do not deny that the health care worker experienced the behavior she testified about. Like I said, it’s a college environment. It’s going to be “sexualized”. The question is was the behavior she experienced “sexual harassment and/or violence”? Just because she disliked it and quit, doesn’t mean it’s “sexual harassment and/or violence”. If it was harassment and/or violence, why did she do the job with the band for so long? Hadn’t she done it for 18 years? That’s a long time to be looking the other way with “harassment and/or violence” going on. Is she related to Joe Paterno? So either she just got tire of the immaturity of college students, or she’s as guilty as Joe Paterno was.

    There are a lot of people who don’t like going to the Doo Dah Parade in Columbus as the 4th of July. Why? Because it’s offensive to them. Eww! Gay people being icky and showing pride in their sexuality. Quick! Someone scream “hostile environment” and get the thing banned!!!!

    That’s actually what society was like 40 years ago. We’ve matured a lot as a society since then. There’s no “sexual harassment nor violence” at the Doo Dah Parade, nor any gay pride parade or festival. It is a “sexualized culture”. It’s gay people celebrating their sexuality… and doing so perfectly legal.

    You can’t just claim “sexualized culture” and assume its negative. These are college kids. They’re “sexualized”. And the school is vilifying them and demonizing them for being exactly what they are and all of us were when we were their age. IT’S WRONG TO VILIFY AND DEMONINZE PEOPLE FOR BEING SEXUALIZED!!!! If you are going to scream “hostile enivonment” the burden is on you to show enough incidents of “harassment and/or violence” to meet the Supreme Court/DoE broad interpretation of Title IX BEFORE you punish them for being “sexualized”.

  135. Ummmm, do you have a right to drink if you are under-age, or to provide drinks to someone else who is underage?

    Do you have the right as a white male (for instance) to use public education dollars exclusively (or disproportionately) for other white males?

    Does any campus group have a right to engage in behavior that is openly hostile to the presence of other groups on campus? No matter what the level of hostility? Is there a point at which free speech becomes terrorism? Is it permissible to burn a cross on someone’s front lawn? what about on the sidewalk or the public park across the street?

    You should ponder some of those rhetorical questions, along with whether society ever has an interest in limiting individual freedoms before throwing around charges of trampling individual rights.

    And then you might ask yourself whether the majority of students are truly supportive of such things as date rape or taking various liberties with someone incapable of granting consent (or resisting). A good bit of what it takes to counter such cultures is rallying those who do NOT agree and providing them in advance with a variety of potential responses to intervene. Such as ensuring that an inebriated friend has a safe ride home. Such as distracting someone poised to take advantage. Such as notifying the friends of someone in a vulnerable position. All of these fall short of the direct challenge of a friend being a boor–although that is also a possibility.

    But, perhaps, John, you could be more specific with regard what individual rights of yours you believe are being trampled.

  136. Again Rob, I ask. How many is enough and by what yardstick do you judge their severity?

    Mr. Fine suggested that one incident in which there was a showing of sufficient severity to alter the course of one’s education (or band participation). When I pointed out that one case does in fact exist, then he moved the argument elsewhere.

    So, Rob, since you have appointed yourself emperor over all that you see, and are throwing out all case law related to Title IX and hostile environments, please provide your criteria.

  137. Rob,

    Under Title IX, sexual remarks and behavior must not reach a level where it would make a reasonable person. Waters had a responsibility to deal with it. In September of 2013, an 18 year volunteer PT resigned after inappropriate behavior on the band bus. In October of 2013, in his email to Gayle Saunders he said he was shocked at any allegations of a sexually hostile environment, and attributed it to a “rumors.” Yet as of July 2014, in regard to Ohio State’s expectations about the Band’s culture, Mr. Waters admits the Band’s culture was “offensive,” “inappropriate,’ “vulgar,” and “demeaning,” and “not . . .in a ‘good place’ currently” What happened in the intervening months? One can only guess, but one guess is Waters realized that too many witnesses were not backing him up. Of course, Waters might have said, well I thought it was OK, but when I had my conscious raised, I realized things were not so good. I suspect that Waters thought the worst would happen would be a warning or a slap on the wrist, and was surprised when that was not that case.

    I do not think the University fired him because they were afraid of a Federal Civil Rights action. I think the top admin realized that Waters was more concerned about being a friend of students than a leader. In the interviews pre-suit, he constantly relied on the “student leaders” to decide, should we eliminate this or that. That is NOT the role of the band leader. I think that the admin came to realize this, and that belief was even further validated when they found the calendar with mostly naked students on it in his office. Why would he save this? I do not think he was a pervert, I just think he was way too anxious to celebrate his friendship with students, and because of that, he should not and cannot be the person to lead the band to a new culture.

  138. You are seriously comparing marching in underware and a stupid songbook with burning crosses, date rape and terrorism? You really think firing the band director was the big thing OSU needed to show the OCR that they are on the right track now? Forget the other 80+ cases that they botched that got them in trouble in the first place, now that Mr. waters is out of the way they can really clean thing up now! As far as songs hostile to women – you can hear much worse on the radio and they are often in the rap genre.

  139. So you are comparing marching in your underware and a stupid songbook with burning crosses, date rape, and terrorism?? Of course there are limits to individual freedoms but what the marching band was doing came no where near that limit.

  140. Mr. Box,

    Are you actually trying to claim that if you protect free speech, you are also advocating for rape?

    Songbooks with offensive lyrics can not be made illegal. Our speech and behavior in public can not be regulated simply on the grounds that someone might be offended or feel uncomfortable.

    The only problem with Title IX guidelines is when people like you cherry-pick random sentences and construe them to be the entirety of the law, but they are not. The bottom line for interpreting Title IX is how it will interact with our constitution. And in order to characterize speech and behavior as criminal, as the hostile environment definition does, it has to be found harmful. Not offensive or upsetting or awkward or uncomfortable, but harmful. And it has to be found harmful in fact, not harmful in theory.

    Let me say that again. In order to find that speech is criminal, it has to actually have caused harm, not simply raised the possibility of causing harm. This is central to how every first amendment case is decided. The court has consistently ruled that we can not put prior restraint on free speech. That is, we can not limit speech because it MIGHT be harmful. We have to wait until harm has occurred, and then address that harm. This is another way of looking at why I keep insisting that in order to claim a hostile environment, OSU must show that someone was harmed by that environment. Title IX rules on a hostile environment can not be effectively equivalent prior restraint on free speech. They can only address harm where it has actually occurred.

  141. John, I do not think one should compare songs on the radio with the those in the songbook – here is the difference. The former are not part of the band activity, which is part of university class. Everyone, regardless of gender, is entitle to try out for the Marching Band, be accepted or not, based solely on their ability. No one HAS to listen to songs on the radio, attend frat parties, etc, but everyone has the right to participate in university classes without being subject to a hostile environment. Being on the bus, the midnight ramp, “rookie” events, are all integral parts of the band. Yes, you can exercise your first amendment rights, but NOT in a classroom or in a workplace, if it would make a reasonable person uncomfortable.

    SeekTU — I do not know when anyone else is expecting a decision, but PACER indicates that a pre-trial conference is scheduled for early December. That would be the start of the process where each party indicates what depositions they want to take, etc. That can be postponed, if both parties agree, but my guess is that if the court hands down an order dismissing on OSU’s motion, that will be sooner rather than later, to avoid pain in the neck discovery. Waters can respond to OSU’s motion, but I suspect it will be more of the same. Yes, he was a great bandleader (but OSU still had the right to fire him). Yes, the cheer coach got a warning and he did not (but anyone can distinguish that, he taught a university course, she did not; he earned 150K per year, she earned about 1/3 of that; they had different bosses, etc.)

  142. Mr. Fine, no one is saying that Waters’ speech was criminal. Being in violation of Title IX is a civil matter, and can result in the Federal Government taking civil action (which would be less money to OSU). No one is going to jail. Persons who provide money to other persons have the right to put conditions on the recipient. That is the way of the world.

  143. Concerned Mother,

    Midnight ramp was after hours, and voluntary, and while many former members do consider it an essential part of their band experience, it is not part of the classroom experience offered by the University. It is an entirely optional after hours activity that some students choose to engage in.

    The songbook is absolutely not a “band activity”. Even in my day, these songs were not allowed to be sung during band hours, including bus rides. It happened occasionally anyway, and it was stopped by those in charge when it did. It never rose ANYWHERE NEAR the level of a hostile environment, first because it was rare, and second because staff responded. After hours at parties are a different story, but these parties were optional, and not part of the class experience.

    In contrast, students new to the University who attended the official new student welcome HAD TO hear a song extolling the benefits of having sex with women who have large buttocks. In all seriousness, I am positive that the marching band is a safer and less hostile environment than the University at large.

    As far as the free speech issue, I shouldn’t have used the word “criminal”. I should’ve said that the government can’t regulate speech unless and until it causes harm. You call this a civil matter. That’s an interesting but irrelevant distinction. The first amendment limits what the government can and can not do in regulating free speech, including through agencies such as the Department of Education, and via funding requirements. The hostile environment definition is all about speech and expressive issues (jokes, songs, posters, etc.). To that end, it can only be applied in the context of actual harm having occurred not theoretical harm. And yet OSU has made these claims in the absence of anyone suggesting that they found this environment to be hostile to the point where they could not participate or benefit, the standard required by Title IX.

  144. Mr. Fine, Midnight Ramp existed because the band had access to the stadium at night. It is an official event. Even Mr. Waters said so in 2009 (in an email to the campus police, who had issues with the drinking associated with it). As to whether or not it is voluntary, that is difficult to judge. Given that students can be cut from the band, many reasonable people would regard failure to participate in an official event as problematic.

    I do agree that the orientation song was totally inappropriate and would hope someone brought it to the attention of the Title IX compliance group.

    You can call the distinction between civil and criminal matters irrelevant, I do not agree, but time will tell. In the meantime, let me say parents are sick of this stuff. You say songbooks were outlawed, but still showed up. What did Mr. Waters do to put an end to this stuff? Did he ever say, anyone caught with a songbook loses his next challenge? Did he even listen to complaints of outsiders (the PT person, the campus police), or did he just say “tradition.”? Did he stop band members from changing in front of others on the bus? You are big on rights, I would say, the university has every right to say we do not want this behavior and you are not committed to ending it. Jon Waters did not own the band. He was getting paid a lot of money to be the leader, but he abdicated that leadership, and put it on the students.

  145. Concerned Mother,

    Please consider what you are really saying…

    “You say songbooks were outlawed, but still showed up. What did Mr. Waters do to put an end to this stuff”. – What can the band director do to end an underground song book?? How can you have someone loose a challenge for simply possessing a songbook? You are then infringing on their 1st ammenent rights. Look, I get it – there are many things in the book that are disgusting and offensive and that I don’t agree with but when making decisions on this I always err on the side of personal liberty.

    Regarding changing on the bus….Do you have any idea what any event away from home is like??? Uniforms are generally not comfortable at all and the closest BIG school is over 3 hours away. High school students change out of uniforms all of the time on buses and it is not a big deal because shorts and t-shirts are usually worn underneath the uniform. As Rob shared, things like this were included in the report and blown way out of proportion for shock value.

  146. Dear Mr. Fine, If I was not clear, let me try again. It was within Mr. Waters’ control to say anyone who brings ones of those books on the bus, to a practice, etc loses their next challenge. No one has a first amendment right to be in a band. Maybe when these band members grow up they will understand that your exercise of first amendment rights means that while you cannot be arrested for exercising those rights, you CAN lose your job (which is comparable to losing your band slot). Anyone disseminating stuff like this at a workplace would not be arrested, but might very well be ushered out.

    I am not saying people should have to ride in the bus in their uniforms, but Mr. Waters could divide people up by gender etc. He made NO effort to deal with this.

    At the end of the day, Mr. Waters did far less than what he could have to eliminate the sexualized nature of the band. He himself said “Good Point” to the question as to why he allowed inappropriate nicknames to continue.

  147. A couple of years back the band director at Wisconsin cancelled the band’s appearance at a game. This was two years into a clear campaign to change band behavior, end hazing and the like. He found that there were some violations and took action. It was a bold move, but it communicated clearly that the behavior was unacceptable and would not be tolerated. A couple of high school football teams shut down their seasons early this year due to some “unofficial” hazing behaviors. Waters and his defenders seem to be relying on the on- vs off-campus and official vs unofficial behavior defense in order to claim that there was nothing that Waters could have or should have done. The reality is that both the experiences of others in similar positions and case law are not on their side.

    I do expect the court to throw this out on the grounds of at-will employment. However, if the do agree to hear the case on grounds of sexual discrimination against Waters, it should get very interesting.

  148. Concerned Mother,

    You are entitled to your own opinion but not your own facts. Midnight ramp was absolutely not an official event. The stadium was open 24/7 to anyone familiar with the facility. Even if it was closed, there is access via the bandroom, to which some students have always had keys. And voluntary is not in dispute. Just ask any of the many people who did not always do it. like me, my rookie year, when I didn’t do it. The years that I did do it, it was never even close to a full band. There were gaps in the formation every year. Somewhere between half and 2/3 is probably a fair estimate. No one takes attendance. No one cares. And there is no way to be “cut” from the band after you are in. Yes, there are challenges. Each alternate picks one regular marcher to challenge for a marching position, and they are graded numerically according to their marching performance. This is handled by squad leaders, overseen by staff, and can be appealed to staff. There is no room for any personal influence here, and no one in the band would tolerate that anyway.

    As for the songbook, I have only seen it claimed that he saw a songbook once in his entire tenure as band director. What problem exactly did he need to solve if in two years he saw one single copy of a songbook once? And what kind of hostile environment could possibly come from one single incident in which a songbook was simply seen in the band room?

    And adult performers changing clothes in close quarters is standard behavior, even in high school. Every drama group I’ve ever seen does quick backstage changes in plain view of cast and crew. The buses we used with high-backed seats gave adequate privacy with a friend seated next to you. And many band members male and female would wear light sportswear under whatever clothes they used so while changing they were never even in their underwear. I consider it infantilizing that the current band now has to unload the buses, transfer to some changing facility, and get back on the buses, adding a ridiculous amount of extra time and annoyance to every band trip. And while the inter-gender changing issues may be somewhat alleviated (if we assume the facilities are adequate), the intra-gender issues will likely be significantly more uncomfortable in the new setting compared with the bus. For example suppose someone feels uncomfortable changing in front of ANYONE (as many do)? On the bus, they were relatively well-hidden and had every excuse for wearing an extra layer out of modesty. But thrust them into a locker room or a hotel room or a big open hotel suite or whatever facility the band can scrape up for changing, and they will be changing on display, with no easy way to justify to their peers any extra modesty they might still feel in that setting.

    Mr. Waters probably made no effort to address this situation, because nobody had any issues with it. I’m not saying it never made anyone uncomfortable. It made ME uncomfortable when i was in the band. But as I’ve said many times, “uncomfortable” does not constitute a hostile environment. I was able to participate in and benefit from the band. And part of that benefit came directly from the experience of changing on buses. I learned the importance of focusing on the goal, and setting aside the insecurities. That’s a big benefit.

    Uniform changes were never a problem. The “solution” has definitely caused problems.

    “At the end of the day, Mr. Waters did far less than what he could have to eliminate the sexualized nature of the band.”

    I thought he was supposed to eliminate a hostile environment? But that’s the problem. Whenever anyone realizes that they can’t quite prove any hostile environment existed (because it didn’t), they jump back to that “sexualized” thing. But of course they can’t even show that the band has a sexualized nature (because it does not). The only evidence they have is that, off-campus, and after hours, some band members do some things that are “sexualized” sometimes. That describes every human being. I’m pretty sure it’s not Waters’ job (or anybody’s) to eliminate that.

  149. I would like to inform concerned mother that in the time that I have been a Band parent, in the previous 4 years, and while Jon was Assistant Director and Director, it is my understanding that songbook songs were not sung at any gathering. They were historical, rarely even seen by band members, and Jon did not need to address history. He typically worked 80-hour weeks, and was making positive changes for the good of the students. Three interim directors are having difficulty accomplishing some of what he was doing. Last year, Jon received requests from 1,000 news agencies around the world for interviews. He was also working very hard on fund raising and an endowment with matching funds for scholarships for every band member for fall semester. When his reviews were positive and the Compliance officer assigned to the band quit for lack of cooperation from her own department, and there were no complaints from band members, how could they fire him without the Glaros nonsense?

  150. Dear Mr. Fine,

    In 2009, as Assistant Director, Jon Waters sent an email to the campus police (after an incident where the Midnight Ramp resulted in an arrest and a trip to the hospital) making it clear that the Midnight Ramp was under the aegis of the band leadership. That is a fact.

    As to the sexualized nature of the band, including the bus trips, how do explain everything that Pam Bork said when she refused to volunteer anymore (after 18 years!). That the language on the bus was unacceptable, that the drinking was unacceptable — at what point does Mr. Waters do anything? And even he admitted in 2014, that the band was in a bad place on some of these issues.

    Dear OSUMB parent,

    Waters was an at will employee, and as such could be terminated whenever OSU wanted. No one has said he was not a talented band leader and choreographer, but that is not enough.

  151. “That is fact”. Really? The email is fact. The incident is fact. But this hardly makes midnight ramp “official”, and certainly does not mean attendance was required. I know this because I know for a FACT that it was not official and I know for a FACT it was optional. Waters was contacted because it was band members and on campus. But of course thousands of unofficial events that students put together all happen on campus and of course none of them are official. When we (OSU students) had a gigantic campus-wide snowball fight in 1985 (I think), was that official just because it was on campus and police were contacted?

    Alcohol is a tough issue. While it can be controlled relatively easily during official band duties, the serious alcohol issues happen outside of Waters’ jurisdiction. He can only advise students in this regard. As for Ms. Borks’ role in this, several other witnesses have had their statements taken out of context, so I don’t have complete faith in OSU’s accounting of her testimony either. That fact that she had concerns, which as I understand it were primarily about excessive alcohol (which is not why Waters was fired) does not mean provide any evidence of a hostile environment of sexual harassment.

  152. Mr. Fine–you are splitting red herrings here. You continue to believe that there is some magical line between official and non-official band behavior that is critical to the overall environment of sexually-based hostilities or inappropriateness. The courts have frequently said differently. However, it is still going to be very difficult, should he be called upon to do so, for Mr. Waters to argue that an optional attendance clothing optional event at midnight utilizing instruments, attended solely by band members and within the sacred ‘Shoe (not to mention overseen by Waters and other band personnel) was a de facto non-sanctioned and unofficial activity of the band. If it looks and smells like poo, it’s best not to step in it.

    And apparently you have invested so much in your defense of Waters that you are willing to believe that Ms. Bork was simply misquoted in the Compliance Office report. Really? Despite the fact of her resignation AND the emails discussion the situation?

    And as far as the relationship between alcohol and the hostile environment of sexual harassment, you seem to forget the case of alcohol poisoning at Midnight Ramp several years back when heavy drinking was part and parcel of the activity (making laughable the story that the underwear march was REALLY about dealing with performance anxiety) and that binge drinking was a factor in at least one assault allegation.

  153. You know what galls me? You weren’t there. I was. I am telling you how it was, and you are telling me I am wrong about what midnight ramp was about, whether it was optional, and whether it was official.

    You’re only knowledge of the situation is a report that several witnesses (who were contacted because they were likely to have issues with the band) have stepped forward and said that their testimony was used out of context and misconstrued to draw conclusions that are contrary to the witnesses’ own testimony.

    That’s kind of screwed up.

  154. Athletes are suspended for games when they violate NCAA rules or even just the team’s written or implied code of conduct. DUI’s and failed drug tests are examples, but even Jameis Winston was suspended for a game, not for something illegal, but for standing on a table and yelling something obscene (not during a practice, and not during a game). Is that a free speech violation? Well it didn’t live up to the established standards of the team, and he paid the consequences.

    There are ways to deal with “off-campus” actions that strengthen the on-campus culture… Ones that are reasonable and don’t mean policing every little thing in someone’s life. If someone hosts (or simply attends) a drinking party which includes underage students, it may not be the band director’s role to go call the police, but the band director can certainly strip the member’s squad leader role for not exhibiting smart judgement and leadership by example. Just that act alone would have a great impact.

    Jameis Winston yelled something obscene, and as a representative of the team and the university, he was suspended for a game for his “off the clock” behavior. If he was put in jail, that would be a constitutional violation, but the coaches are within their right to follow through with the suspension for a limited access program that represents the university. Had the coaches taken no action, the university is well within reasonable right for dismissing the coaches for that or a multitude of other reasons.

    It might be difficult to completely dismiss someone from the band for off campus behaviors, but not promoting them to student leadership ranks is an easy consequence to implement, as leadership positions should be the result of positive example both on and off the field. If the behavior continues, suspension, and dismissal are the next step, and are reasonable solutions.

    Saying midnight ramp was unofficial and optional, parties are unofficial and optional, vulgar/harassing midterms are unofficial and optional, vulgar nicknames are unofficial and optional etc. does not mean the director is helpless in his or her ability to control what they and their team establish as acceptable representation of the ensemble and the university.

    When Betty Montgomery’s report comes out, if there are only positive accounts from all the people she interviews, I expect that to pose somewhat of a challenge to the university report. However, how many instances of students that who refused to tryout because of the entrenched culture … or more likely students that were in the group for one or to years and then left claiming negative culture elements, does it take to make the hostile environment claim? While supporters of the band likely say it needs to be a ton, I think it actually would have to be relatively few. Hostile environment is not a majority rules situation.

  155. *(one or *two years)

  156. Mr. Fine–you were where you were, which is hardly present at each and every incident cited in the report. Now, I am guessing that you have never been a female nor experienced harassment or discrimination as such, and perhaps have no realization of how subtly it can operate. Now it looks to me as though–from the accounts of defenders of the practice–Midnight Ramp served as a challenge of sorts, to prove that one had the fortitude to ignore what all around might be thinking and play anyway. At least, this seems a more rational understanding than that it was an optional “help” activity for those who thought themselves a bit too shy to perform in front of crowds. However, as a challenge, an amount of coercion is implied. It is a test, intended to prove one’s self. The same can equally be said about the binge drinking activity. Competitive drinking is intended to prove that one can “hold their liquor,” presumably a mark of either fortitude or maturity. Both of these represent cultural assumptions. And as SeekTU has just ably pointed out, it is possible for those in leadership positions to impact both the activities and the culture of the band(s).

  157. @Out of the Box – the only “tests” one has to pass after having won a position in the Ohio State University Marching Band after the tryout process is 1) music checks and 2) uniform inspections.

    Music checks occur the friday before home football games, and the purpose is to show you can play the shows music completely from memory.

    Uniform inspections occur hours before home football games, and the purpose is to show your uniform is being worn complete, correctly and cleanly.

    Failure to pass either of the above could cause you to lose your position in the show and become an alternate, as well as lose part of a letter grade for the class.

    As for doing other things as a “test”, it is impossible for any of them to be anything more than “social” tests which not only occur outside of OSUMB rehearsals and performances, but also occur outside of nearly every OSU class, as well as every college class across the country.

    While “social” tests can be daunting to college students given everyone wants to “fit i”, there is absolutely no requirement in the Ohio State Marching Band to be social, make friends, or be a part of any other band members life outside of rehearsals and performances. You will not make a better letter grade or worse letter grade based on your social skills or lack thereof.

    Many people at Ohio State do binge drink, and you are right that many do it as a “test” to show their friends they can “hold their liquor” to the peers they are trying to impress or befriend. This is not a band culture issue. Nor is it even an Ohio State culture issue. It’s a college culture issue.

    I disagree with your assessment that midnight ramp is a “test”, but let’s just go with the assumption that your assessment is correct, just to show that even then it’s just a “social” test, no different than binge drinking. Can you show any evidence at all, anywhere, that an OSUMB member’s participation in the OSUMB was altered due to their decision to do or not do Midnight Ramp?

    So first of all, it’s not a sexual thing. And second of all it has absolutely no impact on the students participation in the band. These being the case, it is so far from being “sexual harassment” it’s laughable that it’s even listed in the Glaros report at all, even when using your assessment that it’s a “test”.

    But, as long as there is confusion as to what Midnight Ramp is by the public, that confusion (as well as the many other examples in the Glaros report) fits the Glaros report’s purpose of painting the band as being guilty of “sexual harassment/violence” without having to actually prove one instance of it. The band is thus guilty until proven innocent in the court of public opinion. Mission accomplished by Glaros. So keep stirring the pot of confusion as without confusion, the whole support for firing Waters begins to fall apart.

  158. Concerned Mother – I believe you are confusing “official” with “required.” When I made the band, Jon made it a strong point that at no time were we expected to consume alcohol or partake in anything that made us feel uncomfortable. These sentiments were also expressed by my squad leaders, and they made themselves available to talk about it if we were at all offended or uncomfortable in a situation. In fact, they were very over-protective of me during my first year. I was told about Midnight Ramp ahead of time, and I was also told that it was NOT REQUIRED and that I could wear whatever I wanted if I chose to participate. The directors oversaw it to make sure it was under control and no one got hurt. The point of MR was not sexual by any means. It was goofy fun. Just because many chose to be in their underwear does not make it sexual. Would it have made a difference if we wore bathing suits instead?

    Out of the Box – I continue to be offended by your perpetuation of the innuendo of discrimination against women. I am a woman who has been through this band who has never been harassed, sexual or otherwise, nor discriminated against for being a woman. I am also a woman in engineering. We have a pretty low female:male ratio there, too. I might even argue that it’s lower than in the band in my specific department. My point is that you cannot use pure numbers and nicknames by which the women to whom they were given are not even offended as proof that the band discriminates against women. I used the word “misogynistic” against you because it seems you would like to tell or even control the women in band how they should feel because they’re actual feelings don’t agree with yours; perhaps “misogynistic” was a wrong word choice. Now about the nicknames: they were used simply because they sounded cute and were fun to say. They may have been assigned with something sexual in mind, but they were not used in that context; by being called by their nicknames they did not feel degraded. Have you read Jocelyn’s (Donk) open letter to Dr. Drake? If you have, you should reread it. Jocelyn wore her nickname like an attitude, and she was one of the most beloved PEOPLE in the band. All I am saying to you is that gender is pretty much irrelevant when it comes down to official band time. Men and women get the same treatment.

  159. Dory–you seem to be overlooking the reality of at least two complaints (by women) of sexual assault by male band members–one of which resulted in the expulsion of the student who was accused, an additional accusation that has come to light since the report was filed, along with a complaint of cyber-harassment that took place DURING sexual harassment training. These are specific complaints in addition to the complaint by the mother of one of the victims in which a wider environmental problem was alleged.

  160. Rob–perhaps you can offer up an analogous situation from another University Course in which students have the option to meet on-campus at midnight in their underwear to practice whatever it is that they are learning in the course, at which alcohol was once involved (until some fool overdid it and was poisoned as a result) and where students and faculty alike see this as a normal, natural and educational extra attached to the course, and do so with a straight face.

  161. Out of the box,

    The complaints of sexual assult had nothing to do with midnight ramp, a song book, or any nickname. It had to do with an actual assault and the whole idea that the bands alleged “sexualized culture” in any way caused this is beyond ridiculous. So we have one complaint of cyber harassment and a concerned mother that didn’t like the culture. Out of 4000 alumni and 225 active members we have two complaints.

  162. And stop comparing the band to any other class at OSU. It has much more in common with a sports team than it does in the regular class. Can you tell me what normal class at OSU goes on a 8 hour bus ride and stays overnight at hotels?

  163. John–I am not the one claiming that the midnight underwear activity is just typical campus goings on. Marching Band is a credit course–which should set expectations higher than some other extra-curriculars (fraternities and sororities, etc)–and in fact DOES with regard to Title IX. Further, a good bit of what was described in the report, that has been pooh-poohed by the apologists, fits the textbook definition of hazing. Perhaps mathematics is not the forte of musicians, but I count more than two complaints within the band overall–four at least that we know of. And if you are going to count all 4000 alumni, then you will have to figure out how to account for how many assaults and complaints there MIGHT have been in previous years in which we know that the university as a whole was not reporting and accounting for such things appropriately.

    Further, you suggest that there is absolutely no link between the band culture and the assaults on women. And yet somehow a section of the band determined it was appropriate to hold a binge-drinking competition that culminated in a sexual assault. This certainly falls far below the kinds of standards and experiences that are both set as visionary for the band and being reported by many in fond tones. If this was merely the individual choice of an individual band member, how is it that nobody else there chose to intervene?

  164. I am not comparing the band to fraternities or sororities. I’m comparing it to a sport like football in which the players also receive two credits. So the football team has had a run of four players being kicked off the team for drugs. By the logic used by you and the university, coach Meyer should be fired due to a “culture of illegal drug activity”.

    When it comes to binge drinking…you can’t be serious. It is a huge problem all over colleges across the country and leads to horrible decisions being made. How is the band director going to stop this??? What kind of power over time and space do you assume he has?

  165. Out of the Box – I have overlooked nothing. I was at that sexual harassment “training,” if you call it that. The presenter did not seem to be taking it seriously at all. I took nothing from that “training” that I didn’t already already know. I’m saying that you can’t claim that all women in band are victims of sexual misconduct because a very small number had complaints. I won’t deny that those incidents happened, nor that they are small issues, but they were properly handled. I have not been sexually harassed by male band members, and many women who have been through this program have spoken up to say that they have not either.

  166. @Out of the Box – any students of any class could show at midnight at the Oval and walk, jog or sprint across it if they so chose. You and I both know that if it became a tradition to do it, students and faculty alike would see it as a normal. In fact, this is EXACTLY how the Mirror Lake Jump tradition became what it is today.

    I don’t know where you are getting “educational extra attached to the course” from. No one has said Midnight Ramp increases a band members education, and as I’ve said before no band members grade is influence positively or negatively by their choice to do or not do Midnight Ramp. Nor is any math students grade influenced positively or negatively by their choice to do or not do the Mirror Lake Jump. Why do you constantly equate Midnight Ramp to class participation and/or performance? It’s no more required by band members to do than Mirror Lake Jump is required by any other class. They are just college traditions that students do outside of class.

    And as for doing Midnight Ramp drunk, many participants of the Mirror Lake Jump ALSO do it drunk. College kids drunk at midnight. Imagine that. Say it ain’t so, Joe. Say it ain’t so!

    Stop any student walking on campus at midnight of any day of the year, and there’s a good chance you will find drunk ones. Again, it’s not a band culture thing. It’s a college culture thing. Stop vilifying band members for it!

  167. Rob–a number of people posting here and elsewhere have asserted that the Midnight Ramp was an educational exercise designed to help with stage fright, or jitters at performing before the huge crowds in the stadium. They claim that rather than being merely a bizarre social custom, it was designed to provide an exercise in courage, helpful to performance. Now, I didn’t make that up. Perhaps your problem is with them. Further, the same kind of logic has been applied to many/most of the specifics cited, or the band culture in general. The claim has been that the activities of the band are a part of a culture having deep roots and that these things could not easily be changed. Clearly many posting here and elsewhere take the stance that to do away with any of these activities would require a detrimental change to what they experienced as band members. Now, that does not support the claim that these activities were merely optional undertakings by a random few band members–having nothing to do with the culture of the band itself.

  168. Dory–I nor anybody else that I am aware of have made the claim that all women in the band were victims. However, some were, and in fact have claimed actual assaults. Let me recite again for you the facts. A complaint regarding the existence of a hostile environment spurred an investigation–as required by law. It only takes one person to complain–not an entire population. That investigation revealed a number of highly questionable activities, as attested to by a number of people, including several OSU staff, as well as documentation of some highly questionable activities. The recommendation contained within that investigation report was for the University to take action to strengthen the leadership in order to change the culture under which these things were considered acceptable.

    The University took this information and considered in addition the behavior of Jon Waters both historically and in the immediate instance and determined that the best course of action to strengthen the leadership was to replace him. And this was based on both his history of inappropriate responses (under Title IX) AND his lack of cooperation with the investigators. He was offered the opportunity to resign, which might have prevented what he and many here consider to blots on his reputation. He chose instead, urged on by a cadre of band alums who have undoubtedly been perpetrators of many of these traditions, to claim an entitlement to things not guaranteed to him under any law. And to commit the further irony of claiming that he has been discriminated against based on his gender. Perhaps you might consider applying your same criteria of one, or two, or three, or even four instances not establishing a pattern to his claim of discrimination.

  169. BTW–Dory, if the training dates back to Jon Waters’ time, the fact that neither the presenter nor the audience took it seriously is testimony to a lack of leadership. Having read through Waters list (submitted late) of things he had done to improve the culture of the band, my first question was–where is there any information about the “trainings” that he listed? Who provided them and what was the content? I saw later, in the schedule from leadership retreats provided by students, that the “training” Waters’ claimed at these retreats consisted of 45 minute student-led discussions. Now, this is hardly adequate. Further, judging by many of the posts here, I am not terribly impressed with knowledge of laws concerning discrimination, harassment or hazing. Waters claims to have preferred for emerging student leadership to deal with the problems. This is not in itself an bad approach. In fact, I would consider it a very good one. However, in Waters’ case it appears to have served merely as an excuse for doing nothing. Fostering student leadership, meaningfully might have included some actual legally- and research-based training for student leaders, followed by a review of band activities with suggestions for improvement or replacement. And the adult leadership really ought to have done away with Midnight Ramp long ago. If it served the purpose that some claimed (calming stage fright), an alternate activity could have been developed. However if it was, as it appears to the outside, merely a racy event, daring folks to strip down, then steps to shut it down should have been taken.

  170. @Out of the Box- yes, Midnight Ramp helping with the stage fright of performing in front of 100,000+ people is EXACTLY what it is. Why do you then g the extra step of equating that to being an “educational exercise” and therefore a “test” of the class?

    Is telling an actor/actress to “break a leg” an educational exercise? Is doing so a “test” in performing arts classes at OSU? Is imagining an audience you are giving a speech to being in their underwear an education exercise? Is doing so a test in speech classes at OSU?

    There is nothing educational about Midnight Ramp. Nor is there anything sexual about it. Nor is it a way to turn sober students into binge drinkers. It helps calm nerves when marching in front of 100,00+ people by being able to recall having been on that same field in your underwear. While it seems odd, strange, and weird to the public, it works. So does telling an actor/actress to “break a leg”. So does imagining an audience in their underwear you are speaking to. Despite how odd, strange and weird all these things seem to those who haven’t done them, THEY WORK!!! And if taken away, they would have a negative impact given their positive influence is now lost. Again, these OSU classes do not require students to do these nerve calming things. The students are choosing to do them on their own.

    Midnight Ramp is also an opportunity to blow off steam after spending all summer to prepare for tryouts and finally earning your spot in the band.

    You have really got to stop portraying Midnight Ramp as some deviant sexual behavior, some event that turns sober college kids into binge drinking fanatics, and/or some educational event of the class. These are all wrong. But given how wrong you are about so many things in the Glaros report, being wrong about midnight ramp leaves you par for the course.

  171. Rob–you must know SOMEBODY in pre-law. How about you get someone to give you some basic legal definitions with regard to some basics such as coercion, hostile environment and court rulings on the responsibilities of universities for hazing practices–whether on or off campus, as well as student to student behaviors as concerns Title IX whether on or off campus.

  172. It is not the band director’s job to stop someone’s individual independent activity, but it is within the director’s ability to make sure inappropriate behavior is not associated with their class, team, band, etc. And it is the director’s call, and ultimately the university’s call, what is deemed appropriate.

    By saying, there will be parties tonight but “it’s ok, you don’t have to go to them.” “Let’s have everyone stand up who didn’t drink their freshmen year, to make you feel ok for not drinking.” That implies that the people who do not stand are equally supported by the band, especially if the number of people who stand are fewer than the number of people who do not stand. The new freshmen member trying to figure out college sees “alright, it’s fine to not drink, but with the number people sitting, I’m not going to have any consequences within the band if I do drink underage.” This is especially true if squad leaders and student leadership are sitting.

    The only way for that activity to have positive impact would be if EVERYONE stood when asked that question. The freshmen would have a much larger impression that that type of activity does not happen by people within this campus group and not only is it OK to not partake, they SHOULD not partake if they want to be part of the ensemble.

    What is deemed appropriate behavior does not have to cross a legal boundary. In the band, jewelry, make-up, long hair, and facial hair are not allowed in uniform. None of those behaviors are illegal. But you will not march if you attempt to do any of those things. Is that oppressive rules? No, it is the established norms for acceptable dress for the group. I suspect multiple members, from the squad leaders on up, would have a fit before it ever got to the level of the director to address it, and then he/she would put and end to it… and you would not march if you broke those rules. Clear message, don’t do those thing. That is part of the culture.

    Giving the message that make-up in uniform is a cardinal sin, but binge drinking parties (who’s participants commonality is that they are are in the band or are alumni), sexually themed nicknames, midterms, etc. are ok (or at minimum tolerated, or given the message ‘well we just can’t do anything about that’) Is a dangerous atmosphere and easily leads to more dangerous situations if they have not happened already.

    The University can ask for the band director’s resignation/termination for many reasons that do not have to cross the line of legality. And if it hold’s up that the band director was an at-will employee in Ohio, they have even more discretion.

    Jameis Winston did nothing illegal by standing on a table and yelling something stupid. But, the coaches did not have a meeting of the team and say “Ok, men, there are probably going to be people who stand on tables and say obscene and dumb things. But it’s ok, please do not feel pressured that you have to stand on table and say obscene things. In fact, let’s have everyone stand who did not partake in standing on tables and saying obscene comments.” No… they said … Mr. Winston, this is not acceptable behavior to represent our team and our school. You, our star player, are suspended for a game. When he suited up to stand on the sidelines, they said … get back their and get your gear off. What’s the message to everyone else? Don’t do that behavior in your off-time. Culture established, and enforced.

    Mr. Waters and the alumni should be supporting Mr. Waters’ next stage of his life towards something positive. Not crying over this. I think Jim Tressel is one of the greatest college coaches, and human beings, there is. He is a great football mind. He had high standards, structured approach, really got Ohio State (and the band too). He listed off the top 10 things that happen at an Ohio State football game. #1 was the flag going up and the national anthem. The band and Script Ohio were in there. None of the top ten things had to do with football. Jim Tressel was grounded, balanced, and a good role model. He probably did not intend to violate any NCAA rules, and the incidents that happened that were not reported were questionable and some say very minor. But Jim Tressel took his lumps, and went on to the next stage of his life in a manner that makes him even more of a tremendous example. (Now the President of Youngstown)

    If Mr. Waters is so entrenched in the OSU band culture, that he does not think he can do anything else, then I feel extremely sad for him. Mr. Waters got the short end of the stick for mainly other people’s behaviors. The inappropriate behaviors in the band were not impossible to change; they are being changed now (and abruptly), it’s painful, but it’s happening. If the changes do not take hold, future directors will lose their jobs until they do.

    When Jim Tressel was fired, buckeye nation as a whole wanted him to keep his job, but he did not whine and say “The true culture of the majority of the football team was NOT to get tattoos for free. Look, 90% of the current team didn’t get tattoos for free, and hundreds of our alumni football players didn’t get tattoos for free. I am the best person for the job to make sure students follow the rules. I’m entitled to be the ohio state football coach for as long as I want.” And you can bet that Urban Meyer’s current football players will be sure not to sell memorabilia for free services, because there is a precedent of firing the coach for their (again off campus behavior) if they do so.

    There is more to life than Ohio State football, than the Ohio State band. Jim Tressel gets that. I believe there are much brighter days ahead for Mr. Waters, and the alumni should support him as a person, not identify him solely as the OSU marching band director. He’s got more going for him than that limited scope. Mr. Waters will be better for it, and the culture of the band and the university will grow from it for the long term. The continued fight prevents that from happening and diminishes the person, the alumni, and the organization.

  173. @out of the box – in other words, YOU can’t make your argument, so I should go find someone who can make your argument for you. Okay, got it!

  174. Ummm, no Rob. You need to understand that there is a basis in the law for what I have been expressing.

  175. Out of the Box – The training was during Jon’s time and he required athletic band members to go; as marching band was off-season he could not require the marching band to go, but he highly encouraged it, and attendance of all marching and athletic band members was taken. Also note that many in the marching band take part in the athletic band in the off-season. But here is the detail you probably don’t know: the training was not primarily being held for us. It was held for university athletes. Unrelated to this discussion but perhaps noteworthy is that of all of the teams there, we (the band members) were not granted the free parking afforded to the other athletes. It was a student-led effort by two athletes, one male and one female (I can’t remember the teams they were on). Jon had nothing to do with the programming of it, and perhaps he should have looked into it more first.
    During the season that year, Jon also brought in a woman from Student Life to speak to us about alcohol issues, but the discussion became about nicknames and “gender issues.” Many people argued the advantages of having nicknames, it being a family thing, while some male members with more offensive nicknames did speak up to say that they did not like their nickname; these people were applauded by the whole band. She then turned the discussion after mentioning that she did not see many women in the room. Many women spoke up to refute that we have a problem simply because of numbers because we never felt singled out by our male peers. We expressed that we had been treated like equals. The most negative thing about “being a girl in band” I remember from that discussion was the fact that we have to do band hair and the guys don’t. Sexual harassment never came up because none of us felt that it was an issue. This discussion occurred before the alleged sexual assault.
    On Midnight Ramp, Jon had made the decision in May that it was no longer going to be an event. He genuinely believed that the “calming nerves” explanation was not a good enough reason. He knew there was a better and more appropriate way. And, I cannot repeat this enough, PARTICIPATION WAS NOT REQUIRED! It wasn’t even really encouraged. It just happened. This, along with the abolition of nicknames in general, was going to be a change regardless of whether or not this investigation happened. Surely, as I see you’ve read Jon’s list of cultural changes he made, you should know these already.
    Okay, you’re right that no one has outwardly made the claim that all band women are victims of harassment, but you’re ignoring the sentiments of those who did NOT feel victimized, especially those listed in the report who have spoken up. The report essentially took those people’s right to not be offended away, and now they are not being listened to. What this entire issue has done for us is open male and female members to harassment by the public. Everyone tells us not to retaliate against those who contributed to the investigation, even though we would never do such a thing. Those individuals have been through enough. WE have not been protected from retaliation.
    I see my meddling here to share my experience to get you to see it from the point of view of the vast majority has been in vain. You just refuse to see the wrong the university has done us. I’m done here. Have a nice life.

  176. “The report essentially took those people’s right to not be offended away”

    Really?

    The investigation did not simply spring up (as I reiterate yet again), but was a legal requirement in response to a complaint. Yes–in the past the University as a whole did a really poor job of following the law when complaints were made. It is my understanding that this is why the University asked for the Title IX review–to provide guidance.

    So, yes, the response to this complaint was very likely different than earlier complaints, in that there was a fairly complete investigation. That does not mean that it was unfair or that anyone was being targeted. Further, the report masked the identities of students who were interviewed. Some have chosen to identify themselves publically, and while I am not aware of any particular public retaliatory actions against any of them–beyond allusions to them in discussions such as this, the protection against retaliation refers to acts on the part of the University. If you are accusing the University of retaliatory action, perhaps you would be so kind as to be more specific as to what you are referring.

  177. Chris… er… um… I mean Out of the Box (sorry about using your real name).

    My position is from discussion from practicing lawyers. Why would you advise me to seek the counsel of pre-law students to understand your legal basis?

    If OSU is going to hide behind the “at will” relationship it had with Waters, then it’s because they can’t prove any legal basis for firing him. Because no organization in their right mind would give someone a glowing, praising job review, and then turn around weeks later and fire them for “at will” reasons. If you honestly think OSU had legal basis here, then OSU needs to let go of their ridiculous “at will” position here.

    By the way, Betty Montgomery just recommended that the band “reinstitute the rookie name tradition” and called Midnight Ramp an “inherently charming tradition”. These are things you have characterized over and over in your replies in the absolute most negative light possible. It’s amazing how an unbiased investigation can come to such different conclusions than you.

    Perhaps you should just take a moment, just a small one, to reflect on how negatively biased you have been, and how sharing your negatively biased opinions publicly is more harassing to thousands of present and former band members than any band member has ever been to a fellow band member. I’m ashamed that you are employed by the school I once loved. You’re nearly as bad as Drake himself.

  178. Rob–employment at will is the legal status of every single employee in the state of Ohio that does not have any sort of contractual agreement otherwise. It’s not hiding behind anything. It is a statement of legal fact. LEGALLY the only protections against being fired are those codified under discrimination laws.

    And–I read the report. Montgomery’s “charming” reference was a precursor to a recommendation that it continue WITHOUT the clothing optional expectations. And she found the practice as described to be coercive with regard to the removal of clothing.

    Reinstating the rookie naming tradition was likewise conditional on the establishment of a Compliance Officer within the band who would review each of the assigned names.

  179. Wow! You are so obtuse.

    If “at will” is the position OSU is taking to justify it’s firing, then OSU is idiotic for giving John a glowing review weeks before firing him. BY diving even deeper into the “at will” position, you are solidifying that OSU is a bunch of idiots. Keep it up.

    And in regards to the Montgomery report, I’d go on record saying I’d agree with all of it 100%! It’s an honest and thorough investigative report. Compare that to the Glaros report, and your many accusations on this page, which are sweeping generalizations made in the most negative light possible.

    In addition to the training the band should be receiving, the powers that be at OSU need training on how to manage a university, and not jump to conclusions based on biased and flawed reports that result in damaging the reputations of thousands of its students, both current and alumni, as well as jumping the gun on firing someone who just received a glowing review. The overreaction of OSU is far worse than any action any band member has ever done in the OSUMB. Thank God for Betty Montgomery who showed the real story. Glaros, and everyone such as yourself that went all in with his story should be FIRED!!!

  180. Rob–At will is the reason that Waters has no standing to challenge his firing. It is also the reason his attorney is relying on Title IX to establish standing based on sexual discrimination (against Waters).

  181. So OSU is an employer that gives glowing job performance reviews, yet turns around only weeks later to fire them justified in the eyes of the law by “at will”.

    I understand it’s legal for OSU to do. Do you understand what a crappy employer that makes OSU? I hope you do, because you are an employee of OSU.

  182. Actually, Rob, I am not an employee of OSU.

    However the vast majority of workers in this state and others are employees at will–covered by no contract and protected only by the anti-discrimination laws and what might be left of things like wage and hour laws and work-place safety. If protecting employees from the caprice of employers was simply a matter of being a “good” employer, there would not be nearly the opposition to codifying some basic protections any time it is attempted.

    In this case, however, the skills and abilities that the position calls for have changed dramatically over a period of just a few years, influenced by changes in the willingness of OCR to actively enforce Title IX (along with the Clery Act), a new President with a different point of view with regard to some things like student drinking and hazing (more in line with the law as well as basic safety considerations), and a Title IX complaint that required an investigation. Yes, it is likely that there were previous complaints in previous years that were never properly investigated–and the University suffered no damages. However to use that as the basis for ongoing policy would be foolhardy.

    Likewise, it would be equally foolhardy to rely on job evaluations from that earlier environment as an indicator that Mr. Waters is competent to move forward under a very different set of expectations. As the University accepts responsibility they will likely be acting on recommendations in the Montgomery report with regard for increased supervision of the band and increased connection to the rest of the University. A review of multiple encounters between Waters and other portions of the University, as well as his not only having been schooled under the Woods “circle the wagons” management approach but also continuing in like manner reveal a person not likely to have the desire, let alone the skills, experience and abilities to lead through this change. And that is what the University had to consider. That does not make them a bad employer.

  183. BTW–of you understand that OSU had every right to fire Waters, for good or bad reasons, then you understand that his case will most likely be tossed out of court, right?

  184. You’re digging yourself a hole here. If “in this case” (quoting you), “the skills and abilities that the position calls for have changed dramatically over a period of just a few years” then the glowing job review, and the complete LACK of direction (due to the changes) provided to Jon by his boss in said review show how seriously OSU failed to communicate said “dramatic” changes. Essentially you expect Jon to just intuit on his own that he should do the job differently than Dr Woods did the same job for 28 years, of which Waters witnessed half of Woods’ years.

    You could be fired the same way tomorrow. Your boss shows up and says to you:

    “Unbeknownst to you, your position has changed dramatically, and despite the glowing review I gave you weeks ago, you’re fired for not meeting these new changes I never told you about… and oh by the way, since you’re an at will employee, you have no legal recourse. As you’re leaving I’m publishing a YouTube video that will destroy your character and probably your career, as well as tarnish the reputation of thousands of your present and former students. Have a nice life!”

  185. Yes, Rob. Now you are catching on. Most working people have little to no protection from capricious firings.

    All that other about destruction of character and career–well, that’s some really huge suppositions there.

    But Waters cannot have it both ways. He cannot simultaneously claim to have been making progress regarding change in the climate and also that he had no idea of the environment driving a need for such changes.

    One of the appendixes to the Montgomery report is a business plan of sorts that Waters put together BEFORE the May 2014 complaint. In it he requested a change in staffing for the band citing a number of existing and hoped for changes–increased fund-raising and performances, for instance. What is telling about that plan–in contrast to his later summary of efforts to change the band culture–is that there is no concern whatsoever for increased oversight and supervision, or any mention of strategic planning to impact culture. In fact, the only mention related to it at all was in reference to enhanced training requirements (for which he needed additional scheduling staff)–from outside the band, and the need for documentation and public relations work resulting from two assault accusations. This reinforces what was apparent from his submission, that it was an after the fact attempt at CYA, that there was no pro-active thought being put into changing band culture or activities, and that Waters regarded any such training, etc, as just jumping through hoops put in place by others. Statements by his legal counsel have further underlined this by suggesting that they had anticipated just a “corrective action plan” with some steps (like training) to check off.

    Couple that with the evidence on several occasions of his attempts to whitewash drinking incidents in violation of multiple university and band policies, and considering the reality that President Drake had just walked in the door, and clearly was Waters not the person to give leadership to the band in making needed changes–which will include a different relationship to the University as a whole, but that this was a very good time to make the change.

    And yes, Rob, this happens all the time.

  186. Waters isn’t claiming he had no idea the environment need changed. He’s claiming he received no indication that the expectations of his job had changed.

    No one is making the case that the band is made up of angels and doesn’t need improvement. What people are saying is that the Glaros report, and people like you who ate it up at face value, present everything it found in the most negative light possible. They also say that firing Waters was an extreme over reaction to the real state of the band.

    Had the Betty Montgomery report been the Glaros report, OSU wouldn’t have decided to vilify its students and fire Waters. For example, Betty calls Midnight Ramp “charming” and should be continued minus the underwear aspect. You on the other hand have equated Midnight Ramp to sexual harassment and an event that turns sober students who have never tasted an ounce of alcohol into stumbling drunks. Betty found only around five percent of nicknames to be objectionable and called for the reinstatement of the nickname tradition minus the objectionable ones. You on the other hand have equated nicknames to sexual harassment and that band members are incapable of distinguishing what is and is not objectionable.

    You’re only justification for firing Waters and vilifying the students is that the school can legally do it. You’re right, it can. That doesn’t make it moral. I, and the majority of the public find it sickening. All of us will just have to wait until you, Drake, Glaros, and the like leave the school in shame… then we will all celebrate, as we LEGALLY will be able to do then.

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