Former OSU Marching Band director directs the alumni band during Sept. 13’s game against Kent State.
Credit: Mark Batke / Photo editor
After remaining mostly mum since being sued by former marching band director Jonathan Waters, Ohio State said it’s seeking to dismiss Waters’ lawsuit.
OSU filed a motion in federal court Wednesday to dismiss and respond to the lawsuit Waters brought against the university. OSU said Waters was terminated July 24 because he knew of a problematic, sexually charged culture in the marching band and didn’t address the problems, according to a Thursday release.
The filings also say Waters was an at-will employee who was subject to termination without cause.
“He knew the problematic culture of the band well, but failed to adequately or appropriately fulfill his obligation to meaningfully address the issues before him,” the release said.
The release provided comments of university support from OSU attorney Michael Carpenter, OSU Board of Trustees Chair Jeffrey Wadsworth and Archie Griffin, president and CEO of the OSU Alumni Association. The release did not provide comment from OSU President Michael Drake, however.
OSU submitted new evidence in the court filings, which included a 2007 calendar found in Waters’ office that depicted mostly nude photos of male band members in suggestive positions. Students posed with instruments and other band propaganda and in at least one case, a male band member was shown with only a small marching band flag covering his genitals.
The filings also told of highly sexualized videos that were shown to band members and staff, including Waters, during an annual event called “Fesler Night,” when newly selected band members were introduced to current members, staff and traditions.
One example from 2012 explained a video where a topless female band member opened a door to a surprised pizza deliveryman. A video from 2011 was described where students presented inappropriate nicknames and nudity to Waters, who appeared as himself in the video, for approval.
The filings said those and other sexually charged videos were found after Waters was fired and that he failed to mention them during the previous cultural investigation.
Meanwhile, the filings say at least three instances of sexual assault on female band members of the marching and athletic bands were reported during Waters’ stint as director.
Waters’ attorney, David Axelrod, did not immediately respond to a Thursday afternoon phone call requesting direct comment on OSU’s filings.
Axelrod did, however, provide an email response to The Lantern later Thursday afternoon with a response from Waters, saying he plans to fight OSU’s allegations in the courtroom.
“It is a shame that the university is so willing to publicly disparage the Marching Band — one of its crown jewels — to defend its bad decision. We will ask current and former band members to come forward with firsthand accounts to refute the university’s claims,” Waters said.
Meanwhile, the TBDBITL Alumni Club — which has continually stood behind Waters since his firing — released an emailed statement Thursday after learning of OSU’s allegations, that said it’s hard to even recognize OSU anymore because of the university’s “salacious” and “scurrilous” attacks on Waters and the marching band.
“The university administration’s conduct today, through its pleadings filed in federal court, reflects a complete disregard for the family, for the history and for the human beings involved,” the email read.
Waters — who filed a lawsuit Sept. 26 in the U.S. District Court against OSU and two of its officials — said the university discriminated against him on the basis of gender. He also said OSU did not provide him with due process after the investigation into the band found that he was aware of or reasonably should have been aware of the sexualized culture.
Waters said he will sue for a minimum of $1 million in compensatory damages in addition to seeking punitive damages, attorney fees and reinstatement.
Former Ohio Attorney General and Board of Regents chancellor Jim Petro signed onto Waters’ legal team to assist in the effort.
Meanwhile, a second OSU investigation into the marching band’s culture — this time headed by former Ohio Attorney General Betty Montgomery — is set to deliver its results to Drake and the Board by mid-November.
Montgomery’s task force was commissioned to conduct an assessment of the band’s culture, review university processes and oversight, and provide counsel on Title IX compliance issues. Title IX states schools that receive federal funding can’t discriminate against people based on gender.
The task force hired three outside firms to help in the investigation. At least two of those firms are being paid a combined $885 an hour, and while the contract with one of those firms limited the total compensation to $49,000, the other agreement did not specify a limit.
Montgomery, who is reporting directly to Drake and the Board, was supposed to have her results ready by the beginning of October. She said in an Oct. 2 letter to Drake and the Board that they wouldn’t be ready for four to six more weeks, however.
Still, the university has said it plans on naming a new director by February. University Bands director Russel Mikkelson and associate director Scott Jones are serving as the interim directors until that permanent director is selected.
The U.S. Department of Education’s Office of Civil Rights announced after a compliance review of the university was concluded Sept. 11 that it will enter into an agreement with OSU to ensure proper Title IX obedience, according to a release.
In the release, the OCR agreed with the university that a “sexually hostile environment” within the band violated Title IX and praised the university for its handling of the situation.
OSU was one of 55 U.S. colleges and universities being investigated by the department for its handling of sexual abuse complaints under Title IX. The review began in 2010 and was not complaint-based, the release said.
