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Jonathan Waters to sue Ohio State

Former OSU Marching Band director directs the alumni band during Sept. 13's game against Kent State. Credit: Mark Batke / Photo editor

Former OSU Marching Band director Jonathan Waters directs the alumni band Sept. 13 during a game against Kent State.
Credit: Mark Batke / Photo editor

Ousted Ohio State Marching Band director Jonathan Waters is set to file a lawsuit Friday against individuals and the university, according to a release from Waters’ lawyer.

The firm representing Waters — Shumaker, Loop and Kendrick LLP — will hold a press conference with Waters, his attorney David Axelrod and former OSU marching band director Paul Droste Friday afternoon to discuss the lawsuit. Transcripts from an audio recording with President Michael Drake and what he said to current marching band members about today’s band culture will also be shared, the release said.

Former Ohio Attorney General and Chancellor of the Board of Regents, Jim Petro, has signed onto Waters’ legal team.

OSU spokesman Chris Davey said he had no comment but was working on a response, late Friday morning.

Waters was fired July 24 after a two-month investigation into the band found a culture conducive to sexual harassment. It was determined Waters was aware or reasonably should have been aware of that culture and did not do enough to change it.

Since his dismissal, Waters and his attorney have made multiple public appearances and submitted a letter asking OSU to consider rehiring him. OSU President Michael Drake and the Board of Trustees, however, have declined to reconsider his case.

The university has said it plans on naming a new director by February. It has named University Bands director Russel Mikkelson and associate director Scott Jones as interim directors until that permanent director is selected.

The U.S. Department of Education’s Office of Civil Rights announced Sept. 12 it will enter into an agreement with OSU to ensure proper Title IX obedience after a compliance review of the university was concluded, 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.

Title IX is a section of the Education Amendments of 1972 which says schools that receive federal funding can’t discriminate based on sex.

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.

31 comments

  1. Good for him. It is too bad the school’s rush to judgement and stubbornness in refusing to reconsider are forcing him to do this.

    I hope he gets a couple of million out of this; it sounds like a lot but it is really not, compared to the millions paid yearly to the incompetents who fired him.

  2. The Ohio State University Board of Trustees and President Michael Drake fired Ohio State University Marching Band (OSUMB) Director Jon Waters claiming that the Band had an “over sexualized” culture based on an extremely narrow internal investigation of activities between the years 2012 to 2013 (the “Glaros Report”). This “investigation” which drew broad and sweeping conclusions of the Band Culture drawn from a sample size of only 9 current and former members, despite the fact that there are 225 members of the OSUMB and over 4000 Marching Band Alumni. The Report cited and interpreted incidents and activities which were largely prior to 2012-2013; many which occurred before Waters was named director in 2012. Furthermore, the “investigation” made gross generalities and identified other band members but made no attempt whatsoever to interview them nor to verify the actual facts. Many of those interviewed or named in the university report have publicly refuted comments abscribed to them, stating that important portions of what they said were ignored.
    Former band members and the news media which fact checked the OSU report have also spoken out publicly about the outdated information, inconsistencies and biased investigative methods contained in the University’s findings. I urge everyone to read the “Investigative Committee Report of the TBDBITL Alumni Club, Inc., issued September 12, 2014 for an excellent overview of the investigation, the Glaros Report and its overall impact on the OSUMB members (past and present). Even President Michael Drake, on 2 separate occasions, stated that he believes that 80% of the Glaros report does not reflect the culture of the Marching Band.
    The current members of the OSUMB cannot speak out or defend themselves for fear of retribution from the University. They have been forced, both individually and as a group, to silently endure national ridicule and harassment through the actions taken by President Drake and the Board of Trustees. The University has destroyed the fine reputation and livelihood of Mr. Waters, giving him no chance to even review or respond to the Glaros Report before terminating him. Lastly, the Board’s outright refusal to reopen or further discuss this matter has led to repeated claims that Jon Waters and the OSUMB were used as scapegoats by the University.
    On September 12, 2014, the U.S. Department of Education announced that it had ended its four year investigation of OSU over Title IX issues, specifically citing the University’s handling of the “sexual harassment” in the Marching Band as part of its justification in ending its investigation. It is clear that President Drake and the Board of Trustees manufactured a marching band “culture” issue in order to “publicly” correct it so that the Federal Department of Education would end their investigation into Title IX issues at OSU. Simply put, they betrayed and sacrificed Jon Waters and the OSUMB to save themselves from further embarrassment. There conduct in this matter is reprehensible.

  3. This is a case I want to see in a court of law. The university has presented it’s case for firing Waters and they have stood by their report as being accurate and providing just cause for his termination. Waters and others have argued the report is not fair, factually incorrect, and just plain flawed so it provides no cause. I want to see someone prove their points in a court of law. I’ve been seeing a lot of opinions, I want to see someone prove their point. Because after that we can get some closure on this and one side will have to sit down and shut up.

  4. This should indeedy be fun. What all y’all Buckeyes continue to fail to realize is that even if the report were written by President Drake’s developmentally disabled cat and was completely illegible from messy paw prints, the University was still completely within its rights to get rid of Waters. Unless he can make a case that the firing was based on something that is actually illegal–as in discriminatory. Did they fire him because of his religion, age, gender, disability, country of origin, etc? Don’t think so. Consider that his first attempts were in the realm of making noise, calling forth the influential, sponsoring a petition–with his request being for reconsideration in some sort of “public forum” mediated by a disinterested party. One who has a viable case doesn’t go for all of those things up front. Pay attention to the press conference, whenever that happens, and listen for the grounds, in the law. The closest his camp has come to that so far has been Axelrod’s written legal opinion that they didn’t have to fire him–according to Title IX. True enough. The did not have to, under Title IX. However they chose to fire him and have gone the extra mile of publically stating some grounds. This is well within the rights of the University.

  5. Waters is wasting his time. He won’t win and is just trying to get attention for himself. Get over it.

  6. Read the transcript of the lawsuit on Channel Four’s website- reinforces the flaws of the original report from Glaros- an individual we pay nearly 400k a year to get it right. It has been laughed at by anyone more than a basic knowledge of law and is an insult to what was the Ohio State University-now known as The Ohio State Vocational School, Inc. Many people’s character and good name were sullied by tOSU’s original document which contraindicated his glowing performance review. It was a pre-emptive strike at the Title IX review.
    Listen to the audio of Dr Drake with members of the band, go through the report point by point and it is apparent something is not right-

  7. Alum–I haven’t read it yet, but according to one of the other news channels the grounds (the only real important part) are lack of due process (something not guaranteed in the law, and so far as I can tell Waters was not under contract); and gender discrimination. Oh, the irony. Waters says he was discriminated against because he’s a man!

  8. He is such a baby. He is acting like an entitled child because he isn’t getting his way. I bet he was the kind of kid who would yell at his parent and throw a tantrum in a grocery store when he was told he couldn’t get any candy. There are literally so many other issues instead of trying to fight to get a job back (one that he won’t) he should move on and find employment else where. If he would have left with grace he could have easily gotten a position else where instead all he is doing is making it harder for himself.

  9. tbp says:
    September 26, 2014 at 4:05 pm

    He is such a baby. He is acting like an entitled child because he isn’t getting his way. I bet he was the kind of kid who would yell at his parent and throw a tantrum in a grocery store when he was told he couldn’t get any candy. There are literally so many other issues instead of trying to fight to get a job back (one that he won’t) he should move on and find employment else where. If he would have left with grace he could have easily gotten a position else where instead all he is doing is making it harder for himself.

    ———————————

    Yes….Jon is the one acting like a child. Not the administration, who is doubling down on their indefensible position. They’ve been caught lying, with a recording of Drake literally saying repeatedly that the initial report was inaccurate. Jon is not a child, and Drake is not his parent. Waters is in the position of moral superiority right now, and the Board of Trustees better start pulling out their wallets.

  10. Buckeye in the West

    It is time that this went to court and a way from the court of public opinion. The lawsuit is justified. It could have all been avoided if OSU would have let Jon Waters have his hearing, that he requested. OSU stood by, and still do. WCMH, has on their web site, OSU’s response.

    The irony is, that Jon Waters is filing the lawsuit partially because of discrimination under Title IX. To wit, female OSU employees, disciplined fro misconduct, were allowed to correct the situation and retain employment. Jon Waters was not given the same opportunity. Of course add lack of due process, and slander/libel.

    President Drake had a chance to right a wrong, but chose not to; hence why he is named in the law suit. Looks like his tenure, if OSU loses, will go the way of Dr. Holbrook. It does not help OSU, that part of Jon Water’s legal team, is a former State of Ohio Attorney General.

    OSU will have a lot to defend itself for. The report the OSU Alumni band put out is pretty damning to OSU’s case. So are several media outlets which have also shot big holes in the truthfulness of OSU’s so called “investigative report”.

    No matter hows this ends up; it is going to be ugly.

  11. I don’t see the due process claim. The university made their report that is their cause. That’s all the process he is due as a non-contract employee. His best argument is the report is so flawed it was negligent to release it and it gave no cause to fire me. The point on others have been allowed to stay and correct performance that is case by case the university can argue the impact of the issue is unprecedented. Which takes us to the heart of the matter prove the report is as flawed as you say. The holes pointed out are opinions, they needed to shown as facts in a court of law. If Waters can do that he has made his point and deserves remedy. But sayin it ain’t proving it. The media saying it is meaningless they want a story the band alumni investigation is not exactly an impartial third party. Prove it in a court of law and I tip my hat to you sir. Then I’ll stand with Jon Waters

  12. Don't Let Up Lantern

    To the guy who wrote in earlier calling Jon Waters “baby” names etc…let’s see how you would react if you were summarily canned by your employer when in one hand you have a very good personnel evaluation, and in the other the conductor’s stick to THE BEST DAMNED BAND IN THE LAND. I defy you to sit there and tell me with all your wits about you that this guy is acting like a baby.

  13. Buckeye in the West

    Ronnie, the point is that now only did the OSU Alumni Band find fault with OSU’s report; but, so did local media in Columbus. WCMH fact checked the report, interviewed several people named in the report, etc. and found faults with it. Jon Waters was not given due process because OSU did not follow the proper procedure with state employees. Yes, Jon Waters was an “at will” employee, but Ohio law does allow due process in regards to termination. This is in Ohio statute to prevent the very thing that happened to Jon Waters. Not every “right to work” state has this provision.

    In the end, Jon Waters will get his day in court. He will get to face his accusers and they will be questioned in a public forum. It will take a jury to weigh the evidence and put forth a verdict. This is how our legal system is suppose to work. The idea that an employer can dump an employee, and slander the employee in the process, goes completely against an form ethics and common decency. “Right to Work” and “at will” does not give employers the right to destroy people in the process. I applaud Jon Waters for standing up fro his rights and fighting the 800 pound gorilla; the OSU administration.

  14. Whether he was fired unfairly or not, he does not have a legal claim. Ohio is an at will state. He can not claim discrimination. He has no due process claim after he was caught lying to the trustees. Whether you think cursing is a problem or not, he lied when he said he didn’t curse at students. His credibility is shot. All he will do is make himself virtually unemployable anywhere.

  15. Buckeye in the West

    Karen K, he does under Ohio law. State employees, even “at will” state employees are allowed to hearing. This hearing was denied to Jon Waters. To further this, the cheer leading coach was disciplined for also promoting a “sexualized culture”. She was not terminated, but put on probation. Jon Waters was fired. So, the other part of the lawsuit, is discrimination in violation of Title IX.

    So, wrongful termination for no due process and for violation of Title IX.

    Regardless of “at will” or not; OSU is facing a Title IX lawsuit. Quite the irony, because OSU fired Jon Waters to comply with Title IX; some say as a scapegoat to appease the US Department of Education”.

  16. I’m looking forward to hearing lawyers argue that it is legal to intentionally lie about a person as justification for firing them. I’m looking for to hearing lawyers argue that it is legal to intentionally slander and libel thousands of people. The Glaros report does just that.

  17. Buckeye in the West, 1. Can you cite any case where a White Male under 40 successfully sued Title IX? 2. You are ignoring that he lied during investigation. 3. As to at-will employees being “allowed” hearngs, cite please? Also allowed is not the same as employers required to provide. They do not need a reason to fire him. They didn’t like the atmosphere of the band, they wanted someone who would do better. They are entitled to make that decision.

  18. Karen K., You are so naive. The University didn’t give a toss about any Band “culture”. It just saw a convenient vehicle to curry favour with the DoE and get out from under a Title IX notice that it earned for reasons that had absolutely nothing to do with the Band. To do that it fired without any due process a Director that earned the University millions in revenue and reputation, defamed over 4,000 TBDBITL alumni, painted the current Band members as depraved, alcoholic, homophobes, and trampled all over the privacy and Title IX rights of the young women whose personal information it made public to the entire world. Did you not hear Axelrod talk about punitive, not compensatory damages? In front of a jury, the University is going to get reamed for the arrogant, high-handed, and staggeringly incompetent way it has handled this whole disgrace.

  19. Anon at 10:24, keep drinking the KoolAid. They let go an at will employee. They were not happy with the atmosphere in the band. If any women feel their privacy was violated, they should see an attorney. Sigh, yes I understand the difference between punitive and compensatory damages. Keep ignoring that he lied during the investigation, which would obviate any otherwise requirement for a hearing. You can say that all coachs or band directors curse at students (not certain if true about band directors, whatever), but he told the trustees he did not curse, and they have him on tape. Many parents of HS students are appalled at what was going on.

  20. Don't Let Up Lantern

    Drake, Waddsworth and the rest of these people are about to be taken to the woodshed. There will be howling and wailing because the people in that courtroom who are real Ohioans will demand justice. The events leading up to this deplorable termination were decided and executed by a bunch of transient outsiders. Ohioans will decide the outcome of this legal action. Not Californian imports. Not arrogant English bureaucrats. I want to see the looks on their faces when the jury hands down the multimillion dollar decision against tOSU and its BOT. I wouldn’t be satisifed with anything less than $100 million. This decision must send a message that people are not chattel and if you are lucky enough to be given the keys to presidents office (and believe me Drake you got lucky) you are not permitted under any circumstance to kick them to the curb and stomp on their reputation just because those actions meet your needs at the moment. “Beautiful Ohio” will echo from the stadium one day and justice will be served.

  21. If frogs had wings…..if the administration had employed wisdom,articulation and the ability to negotiate,we would not be in this mess.It should have been handled on the front end.Arrogance many times trumps reason.Mr Waters only wants a million bucks and damages.That’s an invitation to settle…reclaim his job and salvage many others reputations.OSU should do that and run for the courtroom doors.Instead,motions,appeals,civil rights,14th and 5th amendments are about to become part of this lawyers’ dream.

  22. Buckeye in the West

    Karen K, please read the OSUMB Alumni Band Report, before posting anything else.

    The OSU administration, let’s face it, did not cross their t’s and dot their i’s. They put out a very suspect report that would not pass the muster in law school first year. It may not even make it in high school, because of the lousy research done. A report purposely skewed to inflict the greatest amount of damage. If they wanted an “open and shut” case; their report was not it. It was poorly written, and poorly executed. Including the two appendixes (song book and “exam”) only lowered the quality of said report. But, the worse part, was releasing it on the internet so anyone, including those under 18, to get at it. Jon Waters, current and former band members, have enough already for defamation of character, libel and slander.

    The OSU Alumni band Report, some local media, this newspaper, among others, have systematically debunked the report. To say Jon Waters used offensive language against a band member who was disrespectful to another band staff member as full justification, for termination, is laughable. I do not know how many times I walked across OSU, or other college campuses, without hearing one or more of George Carlin’s seven words you should not say on TV. And this is not just students using what is referred to as offensive language. And the recoding, you speak of, was recorded illegally. There is something called “entrapment” and 5th amendment rights involved here, as well. OSU used, and released, this illegal recoding. Is it right to curse out anyone, or a student; no. Is it right to violate the 5th amendment; no.

    As for “lying”. You are assuming that the OSU report is the gospel truth. It is full of lies, half truths and items taken out of context. The OSU Administration stands behind this, and the material within; lies and all. Who can believe the OSU administration about who lied, and didn’t, when they are lying themselves?

    As I have said several times; “at will” does not give any employer the right to violate anyone’s civil and constitutional rights. It does not allow them to commit and illegal act to dismiss an employee; OSU did this because of the poorly written report.

    I live in an “at will” state. Its laws are not a generous as they are in Ohio. But, an employer must justify termination, the hows and whys. When a person files for unemployment, the employer is required to provide a reason. And they must justify if it was termination for cause. So, employers usually will justify termination by doing a staff reduction, so they do not have to deal with issues with the state department which handles unemployment; and termination for cause. The employee does have legal recourse if they feel they were terminated wrongfully. Again, “at will” does not give employers carte blanche; they have to justify it.

    OSU fired for cause. They did not stop there. They went further and had malicious intent in how they handled the report, subsequent termination, releasing the report on the internet and their actions since 24 July. In the process, they defamed Jon Waters, current and former band members in the process. Jon Waters is suing for wrongful termination and violation of Title IX. He could also sue for defamation of character, libel, slander and entrapment. I will not be surprised that if OSU somehow wins this, that more suits are coming for defamation of character, libel, slander and violation of constitutional rights under the 5th amendment. Not just from Jon Waters, but thousands of band alumni, as well.

    And no. No white male has been successful in winning a case under Title IX. Apparently, in the world of PC, white males are persona non grata.

  23. Buckeye,

    Its not only the swearing, its that Waters told his employer he did not swear. If you are trying to say he didn’t say he swore at students, then I guess time will tell.

    If he pursues this, he will not get his job back. OSU will bury him. Music publishers had begun to deny OSU the right to play their music. This is unheard of in the college band arena. Outsider’s opinion of the OSU band will only get worse the longer this goes on.

    He has every right to sue, but I think he is delusional.

  24. I support the university’s decision. Waters had 2 years to stop the juvenile sexualized culture within the band. When asked to provide what concrete steps Waters had taken in that direction, he could not provide OSU with any such evidence of real change. I feel he was a great band director when it came to innovative routines but lacking in proper discipline practices and student conduct management. What was going on at band practices, banquets, and on buses, etc. was entirely unacceptable, regardless of whether females in the band said it “bothered” them or not. And why do some Ohioans have this xenophobic attitude that ONLY Ohioans can make fair decisions when it comes to OSU staff, etc. REALLY?? I’m Ohio born and bred, but comments like that are simply ridiculous and make us all sound like a bunch of hicks. Oh, and btw, it only takes a simple Google search to learn that the previous Buckeye cheerleading coach WAS indeed fired and NOT just put on “probation.” She is gone. A new coach was hired last spring.

  25. Karen,

    I believe the student that taped that ‘swearing incident’ came out and stated that Waters was not swearing at them, but the situation. Further, the report contained testimony from only a handful of people, most of which have come out and said that the University’s report misquoted, misrepresented, or cherry picked their testimony….and did he really lie, if the University “sexualized culture of harassment did not exist?

  26. Maybe Jon Waters, who says he is defending his honor, can tell the court, “you don’t know who you’re f—ing with” and “if I tell you to stand on your g–damn head” etc. If his words are good enough for a student of his I guess they’re good enough to use in court. Jon Waters just didn’t know how to use the authority he had and as a result OSU took that authority from him. I’m still waiting gfor an apology from Waters who said on the TV Networks that he inherited the “entrenched sexual culture” that went back to the 1930’s and that he was “taking steps” to eliminate it. Why didn’t he address the entire marching band and just tell them that this “entrenched sexual culture” is illegal under Title IX and that they “don’t know who they’re f—ing with”….but he didn’t, did he? Waters is without integrity blaming generations past for his own failures. It’s not about bad words; it’s about integrity and lying.

  27. Good job , Jim…..now apply that to the university report and it’s misquotes and misrepresentations. “Entrenched sexual culture”….why we just have hundreds of band members coming forth to tell how they were harrassed!

  28. HitsRus,

    1. I think we can also listen to the tape or read the transcript. It is pretty clear. Now, if some students feel they are being ostracized for complaining, I fell for them. If they choose to put a spin on a conversation, they are free to. Doesn’t mean others can not accept the tape for what it is worth.

    2. If one student is harassed, that is one too many. This is not a private club. This is part of a university.

  29. Karen, we can hear the audio of Drake’s response to a question by a band member (released by Water’s attys. at the lawsuit filing) that pretty much points to Water’s being scapegoated for past university failings.

    “If one student is harassed, that is one too many. ”
    That’s a really nice, neat, tough sounding position….but it shows the idiocy of adhering/advocating “zero tolerance” policies, which does not allow for fair or thoughtful resolutions to minor incidents. One case of harrassment (especially when dealing with 18-19-20 year olds) does not a “sexualized culture” make. Yet that position, has created the mess and the sequlae that we have now. There is absolutely no evidence that the “culture” of the band has harmed ANYONE. Most certainly, in light of today’s society, changes in band traditions are a good thing, but the gross overreaction by the University report, and the firing of Waters was not necessary.

  30. I see a lot of people saying that Jon deserved what he got because he loved about swearing at a student. How many times has anyone else here thrown a swear word or two and completely forgotten? The investigative interview was more than eight months after the recording was taken. Also mind that that particular student had been previously suspended for violating band a band policy in a damaging fashion.
    Also, the university is not so innocent on the lying front. “Facts” that the report got completely wrong have been exposed, such as descriptions of certain rookie tricks, some of the listed nicknames, alleged alcoholism, etc. In a media interview, Dr. Drake said they only looked at incidents from 2013-2014; Harrison Hove fact-checked that quote and proved it false, as the majority of incidents, names, tricks, etcetera had occurred before Jon was the director. At least three of the nine student/alumni witnesses publicly called out the university for misusing/not using their words. Need I go on? Your argument about lying is invalid.
    Jon had a philosophy that students had to be on board in order to facilitate successful culture change, because if you just throw down the hammer, things go underground and get even more out of hand. Example: Mirror Lake Jump 2013. The university tried to control it; many outraged students got wasted the night before, knocked down the gates, and made it out of control anyway. And isn’t that a “sexualized” event. Students jumping into mirror lake in the freezing cold water in their underwear?! That’s not only hypocritical, but also dangerous! You might say the university is trying to make it safer, but recall how things went down last year. It is not safer. Jon preached safety to his students, and tried to push culture change in an effective manner. He definitely has a case against the university.
    I’ve said what I want about Jon, but let’s talk about the band members. Were you in their shoes, how would you feel? If you read this sorry excuse of a report having been a part of the REAL culture knowing the falsehood published about YOU, wouldn’t you be angry and confused? Members have been harassed by the general public while in uniform, called “rapists” and asked what they wore for Midnight Ramp. Listen to the recording of Dr. Drake’s meeting with the band squad leaders. He promised a positive video statement to help at least pick up the pieces. Have you seen such a statement? I haven’t. He also said in that meeting to the SLs that he believed the report was not accurately representative of the band today. The university has created a culture conducive to the harassment of band members by the public and refuses to admit it.

  31. Buckeye I’ve seen the report from the Band and the Media. I want to see it proved in a court of law where the university responds. I’ve seen the local media screw up more then once and the Band isn’t an impartial party. Both parties bring up questions that need to be answered but the university would never answer them to those parties. Let’s see what happens when they have to answer them in a court of law. If the report stands then due process has been met and we are done. If it does stand then university fulfilled it’s obligation and case closed. But at this point so many people are on different sides of the fence it really needs to go to a court of law to get a final conclusion.

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