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Ohio State seeks dismissal of Jonathan Waters’ lawsuit

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 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.

A photo of the cover page from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. The page reads, ‘For Jon Waters’ eyes only.’ Credit: Court records
A photo from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. Credit: Court records
A photo from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. Credit: Court records
A photo from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. Credit: Court records
A photo from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. Credit: Court records
A photo from a 2007 calendar university officials found in the office of former OSU Marching Band director Jonathan Waters, depicting semi-nude male band members in seductive poses. Credit: Court records

 

23 comments

  1. I am so sick of these buffoons trying to squash this in the court of public opinion before it gets to the legal system. Their refusal to define what a “sexual culture” is, outside of providing a few examples (which stretch back over a decade), shows they know their boat is full of holes. The university needs to stop pretending to support the current band if they’re going to continue trashing it in such a disgusting manner.

  2. Appropriate Action

    icky

  3. These new points are in Ohio State’s legal response not a press release. I knew once this went to court it would get uglier and here we go, the university will pull out whatever they have and use it like nuclear bomb trying to wipe the suit out of the courts. The more interesting point is covered by the Dispatch “OSU lawyers wrote that they offered Waters a forum on campus to clear his name on Sept. 11, but that Waters and his legal team never followed through”

  4. Ummmm, Andy. It is in the legal system. The administration is challenging whether or not there is a case. That is how the legal system works. No Perry Mason. No courtroom show, and President Drake will not stand up 5 minutes before the end of the hour and shout, “Yes, I did it! I fired Jon Waters because I knew I couldn’t be a real college President! I just wanted the feds to go away and leave us alone! Oh, the agony!” BTW–one of the university allegations in the current filing is that they offered Waters a forum and he turned it down.

  5. So why don’t we fire the police chief and the cops that were present during ALL the late night ramp entrances mentioned in the initial report? They saw the alleged misconduct and did nothing to stop it or report it to ‘authorities’!! – oh wait, that’s right administrators and cops are above the rules here at OSU.

  6. Out of the Box, if the university truly thought that the calendar and videos were enough to help their case, they’d have waited to release them until the trial started. They’re trying to drum up as much negative publicity as possible against the band before they go to trial.

    And I’m fully aware that real life doesn’t operate like Law & Order. Otherwise we’d have the university claiming to have found semen samples somewhere

  7. Andy–Mr. Waters lawsuit has been shaky from the beginning. As a non-contract employee, he has no guarantee of due process with regards to his employment. His attorney is trying to jam some expectation in edgewise by claiming that his reputation has been harmed. And then he makes the ironic claim of gender-based discrimination–under Title IX. In fact, the University’s claim is some 60 pages long, comprising a detailed response to all of Waters’ claims–paragraph by paragraph. The videos and calendar are just a couple of spicy details that make headlines. Of greater concern should be the third allegation of sexual assault which has now surfaced, and which Waters apparently did not report to the university, as required by policy. However, the point with regard to the videos and calendar (and the newly surfaced song books from years up through 2012) is that these are further matters about which Mr. Waters was not forthcoming during the Title IX investigation, during which he freely admitted that the culture of the band had serious issues.

  8. No. Just… no.

  9. I want my University back. This is ridiculous that taxpayers are paying @$885/hour teams to investigate and all they can come up with is a 7 year old parody stuff? I see worse on public TV and in high schools everyday. I find it odd that the University keeps attacking its own greatest ambassador – the band. This needs to stop. The University made a bad decision and now will throw anyone under the bus to save a face that is already marred by doing so. The general public are not idiots. We can see and smell the rot that is this continued position. You have made OSU a laughing stock now. This administration is wrong and needs to go. Ohioans need to fight for right.

  10. Out of the Box – If this is such a cut and dry non-contract employee issue then why is there a need to constantly libel thousands of alumni and students in order to justify this simple claim? If he truly did something wrong, why did it take so much hard work to fire him? Apparently, you need a report that lists a mountain of circumstantial evidence, paraphrases hearsay about decades of shenanigans from others, invents the term “sexualized culture” and attaches all of this to the largest and most successful co-ed performance-based organization on campus. As far as I know, spice is generally used to enhance or cover-up a flavor. So which is it? Seems like the University has been throwing in a lot of “spicy details” since the Glaros Report. Pay no attention to the University Administration behind the curtain.
    Also, you may want to stop defending your legal team on these blog posts…the “third allegation of sexual assault” (item “a”) clearly doesn’t mention who the assault was reported to…I guess we are just suppose to make assumptions on our own…no, that’s you telling us right here that Mr. Waters was directly involved…seems legit. Also, I’m pretty sure that the second allegation that involved athletic band students (item “b”) also involved Mr. Waters reporting this assault to Gene Smith… but strangely this is not cited…oh wait, he is a contract employee…

  11. …Sloopy lived in a Bad part of town…We now have 60 pages of depravity documented and manufactured by the administration.It includes crimes against humanity and Title IX offenses.When did the Adm,campus police and athletic dept know about the above? The scene of some of this activity was on the AD’s sacred turf.Why wasn’t it stopped immediately by the Adm,campus police or AD? Meanwhile,the Band plays on…great representation at the skull session,on/across the field,and at many statewide festivals..Yet,these young adults….kids….continue to be assaulted and insulted by the Lords of High Street.Do you suppose Wadsworth,Steinmetz,Drake,and Smith stand and clap during the tunnel entrance,Script Ohio,and Across the Field….what hypocrites and phonies if they do……Hang on Sloopy

  12. The people saying that “oh noes! the university is attacking the band” are wrong. The university is defending itself from a lawsuit. Blame Jon Waters for this info coming out.

  13. This is a an act of desperation by Drake, Wadsworth, and Griffin to get out of the mess they have made by firing Director Waters. The are deep in the backtracking/CYA mode now shelling out $900 an hour to consultants to write a report vindicating what they did. Alumni contributions are being used to pay this outrage fee and we are not happy about that. The president, trustees and alumni president are the ones that need to be fired.

  14. Rick Stockum, I completely agree.

  15. If he was at-will employee without a contract, he is finished. Such employment status means that he could have been terminated for blowing his nose out of the wrong nostril. I know this from experience. Not only did I lose my job, i lost my career.

  16. Nuthead–you seem to think that the appropriate response to a $1 million lawsuit is for the University to lie down and day, “oh, thank you very much for pointing that out–we had no idea.” Drake, having just walked in the door, has little reason to CYA in this instance. However, he is responsible for actions going forward. Presumably you are a current student, and too young to have any memory of the days when women were in fact disallowed from even auditioning for marching bands across the country. I do have such memories–as well as knowledge of the kinds of choices that women have had to make once being granted entry into a lot of old boys clubs. We have seen it in the military, we have seen it in business and we have seen it on our campuses. The establishment of Title IX was meant to set a standard by which women gain equal access to the public facilities for which they pay equally. The notion of a sexualized environment is nothing that was just invented at OSU. In fact, it has legal precedent in the determination of harassment suits. And, you should know that for every suit brought, every complaint lodged, there are many more instances in which someone is just gritting their teeth and getting through until they can get out and go somewhere else. Because there is always a price to be paid for being a hero. Clearly the women who have complained thus far are not being welcomed or in any way honored by TBDBITL alums. Instead they have been re-victimized (why did her mother complain for her, she was just drunk and had regrets, this is just normal campus behavior, she’s lying). Many seem to think that everything was made ok by expelling the alleged assaulter (who can go finish his degree elsewhere)–never mind any of the others who were in attendance at the tuba section party (off-campus, as if that matters) who cheered on the binge drinking that was the reason for the party, or failed to intervene when the assault occurred. What is critical about the new videos and pictures (and the newly surfaced republications of the songbook) is that Waters clearly knew of them and failed to bring them to the attention of the Compliance Office investigators–recall that the reasons given for his firing were that he “knew or should have known,” about the various sexually-oriented activities, and that he was not forthcoming with the investigation. And given the laws in Ohio, this is more than sufficient. And his attorney knows it. This is why they have filed under Title IX–claiming gender discrimination. But, this is going to require that Waters show a pattern of discrimination against men at the university. Good luck with that one.

  17. Yeah, sure..........

    First of all, this calendar is rom 2007, well before Jon Waters was in charge of the band. And if these students were over the age of 18 (legal adults) they had every right to be a part of this calendar, if it was voluntary.
    And I question whether the university got permission from the calendar guys to post these (supposedly) so awful photos to the public? If not, then they have ALSO defamed these individuals, which could (and SHOULD) lead to additional lawsuits against the university. The university also released the nicknames of various females without permission and REFUSED to speak with the women, as requested, after it was done. I hope THEY will be filing lawsuits as well.

    It is also my understanding that the university sanctioned a calendar of female “calendar girls” in the past. Why is that ok? Because it was females? Seems discriminatory to me.

    Seems like Drake is getting pretty desperate. Donations must be drying up in a big way.

  18. Yeah, sure. Clearly not in pre-law, are you? The U did not publish the calendar. They submitted it to the court (with faces obscured) as an exhibit. That made it a public record. The court published it. And so far as any defamation, while I am also not in the field of law, I think that it was the students themselves who did the defaming by allowing the pictures to be taken and published via the calendar–and as you point out, they could legally assent on their own behalf. However, as pointed out in the University’s defense document (you should really read it), the band is a course for credit offered by the University. The students took the pictures with their band instruments and portions of their band uniforms. And they submitted it to Jon Waters, who I believe was a staff member at the time. This takes their behavior across a line from strictly personal bad taste to being a part of an atmosphere attached to and a part of the curricular offering of the university.

  19. Out of the Box, since you seem to be such an expert on law, why is the university submitting any evidence at all if they think this is going to be thrown out before it reaches litigation? It seems to me that they would wait to submit evidence such as this until after they actually had to go to court. Considering they don’t seem to think they are, it’s pretty clear they submitted this calendar for the simple task of creating outrageous headlines.

  20. Andy–read their court submission. They are asking the court to throw out the lawsuit, and in doing so responding point by point to the things that Waters submitted in his suit. Their original assertion in the firing is that Waters knew or ought to have known about the sexualized culture in the band. Waters’ claim has been that he didn’t know and anyway he was working to change it. This newest evidence simply underlines the original contention of the University that he knew, as well as their reason for the firing, which is that he “was not forthcoming” during the Title IX investigation. Clearly he knew more than he admitted to them at that time, including incidents and events that occurred during his official time as head. Further, some of the submissions by students and alums–in attempting to demonstrate his change efforts suggest that he knew of or had seen various items that he claimed not to have seen (such as revised versions of the song book). The Waters suit (you might want to read that as well) makes some pretty wide-ranging accusations (suggesting that a deal was made to fire Waters in exchange for an agreement with federal Title IX investigators, internal tensions between the band and music department and so on), which I understand is a common tactic when the case is weak, in order to confuse issues. The University document, as I said before, offers a point by point denial. This is pretty much how the legal system works. And if it looks like one side or the other is ready to blink, their lawyers are probably having conversation as well. I don’t know that I see that happening in this case. The alums aren’t going to contribute to his legal fund forever, and as he was only making $150,000/year anyway, unless his wife has a pretty decent income, he’s going to have to start looking for a job real soon. Time is on the side of the University. And the public is already tired of it and moving on.

  21. If this seems like overposting, I generally publish when I’ve been assaulted, or when my privacy is ignored, or when my cats cry out in pain by some assault of government. if you see three postings in a row, as sometimes happens, it just means i’ve been assaulted, or my cats assaulted, or my privacy invaded, three times lately. the other day it was a flash energy assault aimed at my temple/top of my head. literally thousands of such assaults over the past decade, I’m sure that estimate is accurate….the other day one of my cats was bleeding, hair missing from its back, and two of them actually had scabs and radiation bumps on their back as a result of being shot with energy weaponry. A cat that was hospitalized by energy attacks and food tampering less than a year ago was groaning in pain from energy attacks , and they’re induced to vomit constantly . for many years my cats were crying out in pain from energy attacks –several times a day over many years. they’re still being attacked, and are crawling with fleas despite the application of frontline or advantage products every few weeks–the community is actually putting bogus or weak products on the market in retaliation. they knocked one of my cats off a ledge the other day, 15 foot drop, and have induced another of my cats to run off twice, a cat that is very docile and usually doesn’t even want to go outside/agitated by being shot with energy weaponry. i contacted the aspca in 2007, and after that could only find work fundraising for abused animals, the community’s own form of symbolic punishment. not a bad job, though the idea that they manipulated my circumstance to this extent is ridiculous. My entire apt. is being heated by radiation, more than 10x the norm, causing my cats to noticeably sweat–you could probably measure it from space.
    The federal government of course has all the power in the world to stop it. My tooth was knocked out in increments, over a 2 year span by energy weaponry assaults, for stating and proving the crimes committed by the federal government, absolute torture, like having a tooth drilled without novocaine for several hours. in 1997 i was made homeless by community manipulation; in an 8 or 9 month span i had a gun to my head, was knocked out, and was intentionally run down by a car and taken by ambulance to a hospital, believe it or not, to the laughter of the community.
    the federal government has admitting to torturing, and of course that’s a per se violation of the 8th amendment, though it should also be regarded as criminal.
    If you repeat a lie often enough, it becomes the truth, right? The Democrats’ great accomplishment is producing the political equivalent of a Rodney King video, clearly demonstrating the lies of the right, the right Hilary Clinton correctly identified as a vast conspiracy. Confirm by examining Central District of California Cases, 01-4340, 03-9097, 08-5515, 10-5193, US Tax Court 12000-07L –though I think you want to view my US Tax Court Appeal to the 9th Circuit for a good account of their day to day assaults, a few month time slice indicative of a decade of assault, and more recently 9th Circuit case 11-56043.

  22. lol jon waters, you may be right about the university not directly attacking the band, but it is a by-product. People have retaliated against band alumni AND current members since the first news broke out (while in uniform, I might add), and they continue to. The “evidence” presented by the university displays actions by members, and the public sees it that way. In addition, has the university made any attempt to actively stop the retaliation against members? Have they made a public statement to say “Leave the band alone. It’s Jon who’s to blame for it all.”? NO, they have not! They refuse to because it might damage their case. So, yes, the university is indirectly attacking the band but still uses their half-time shows for their own profit.
    To KenD, yes Jon was at-will, although why he was not under contract for his high-profile position eludes me. But let me ask you this: if the university did not need any reason at all to fire him, why go public with their reasoning? Why was it necessary for Dr. Drake to release a statement via a public YouTube channel to justify the reasoning? Why did the university have to start making so much noise about it from the get-go? All of the reasons in the university reports are based on half-truths and out-of-context fragments of facts, some are even outright lies; i.e. “E.R.V.’s” rookie trick was NOT to act like a vibrating sex toy; she went on the news and showed the world what it really was. Also, Alex Clark’s rookie name was not “Jewoobs”; it was “Joobs,” and she when on national news to explain how violated she felt by the mis-publication in the report. The spelling error appears to be intentional to make the name, paired with an explanation, more offensive and frightening than it really was. Jon’s supporters simply want people to know the entire truth, because if someone is lying about you and your friends, wouldn’t you feel the need to defend your character? The lawsuit is about far more than Jon’s job, but also his reputation as a human being as well as the reputations of band members and alumni because, as I mentioned before, the membership is horribly tarnished, too.

  23. To the people who are interpreting this as a personal attack against either themselves or the band; please don’t. Regardless if there was inappropriate conduct on the part of the police, the director, or other administrators – once the president or board of trustees is informed, they have a legal obligation to act. This situation was clearly a violation of Title IX responsibilities. The Department of Education has said as much.

    Title IX is far reaching. In fact, if OSU hadn’t acted, which in this case took the form of firing Waters, initiating a larger cultural review and other assessments of policy and procedure, the University could lose access to federal funds. While that is unlikely in any event, there is an enormous amount of attention on Title IX issues. In a certain sense the university was backed into a corner. A very serious Title IX violation occurred the moment that event one student reported a sexual assault and it was not properly reported or handled. Not only is it personally harmful to that student, it also means that the larger university would be held responsible for those actions.

    Even if there weren’t the allegations of mis-handled sexual assaults, if a culture and environment exists where a reasonable person would be made to feel harassed, uncomfortable or coerced to participate, then Title IX has also been violated. I see many people claiming that the culture was changing – great – but was it enough? Was it perhaps possible that among the many traditions within the band, some, if not many student were made to feel uncomfortable by the actions of others at the moment when this report was issued? I would venture a yes. The response since that point has reemphasized that to me; the band shouldn’t be issuing general statements on behalf of all students who have or are participating. This is a very tricky legal situation for the university. There’s no clear cut answer and I’m sure that Drake didn’t walk in and say something like “Let’s fire Jon Waters! He deserves it! I want to get rid of him!”. Realistically the university was taking a practical step to protect itself in any future legal proceedings.

    I get that this is personal for many people. How can it not be? But there’s a give-and-take here. The university isn’t acting with malice, and by submitting this evidence is making a case for its defense.

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