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  • Former OSU Band Director Files Title IX Lawsuit After Being Terminated By University

    Over the past year, an exceptional number of colleges and universities have been accused (by both complainants and alleged wrongdoers) of mishandling complaints of sexual assault and sexual harassment in violation of Title IX. Now, in a somewhat unconventional case, one institution in Ohio is also facing a Title IX lawsuit recently filed by an ousted employee.

    Specifically, former Ohio State University (“OSU” or the “University”) band director, Jonathan Waters recently filed suit in federal court, alleging that the University denied him due process rights and sexually discriminated against him in violation of Title IX.

    The University terminated Waters in July 2014, after a two-month investigation revealed that Waters knew or reasonably should have known about a “sexualized culture” that facilitated sexual harassment within the marching band. According to an investigative report, band members were assigned crude nicknames and encouraged to perform sexualized “tricks” on demand. New band members were introduced using sexual props or dirty jokes “while other students attempted to remove articles of clothing.” The report also describes customs such as the “midnight ramp” in which band members entered the stadium through a ramp clad in only underwear.

    The band, also known as the “Best Damn Band In The Land,” consists of 225 members and received international attention for its 2013 local halftime show tribute to Michael Jackson. In support of its decision to dismiss Waters, OSU released a statement stating that “the hazing and harassment problems that were found to exist in the marching band during Mr. Waters’ time as band director, and his more than 10 years as part of the band’s leadership, were not reflective of what this University stands for or tolerates.”

    However, the lawsuit filed by Waters’ legal team, which includes Jim Petro, a former attorney general and chancellor of higher education, alleges that OSU President Michael V. Drake and Provost Joseph E. Steinmetz violated Waters’ constitutional due-process rights insofar as they did not give Waters a chance to respond to the complaints made against him. Waters was allegedly “working to fix the problems in the band” and “was blamed for traditions that date back decades.” “The report that was issued was very one-sided. It cherry-picked certain details. It only interviewed a sample of nine people out of thousands of alums and the 240 current band students,” said Waters.

    Additionally, Waters alleges that OSU violated Title IX and discriminated against him on the basis of his gender, since women in similar situations were not treated the same way. In making this claim, Waters specifically refers to the case of a former OSU cheerleading coach, who was fired last year for allegedly mishandling complaints of sexual misconduct by two assistant coaches. However, prior to her dismissal, the female coach was given the chance to remedy her prior bad acts, and was ordered to develop an improvement plan. Waters claims that because he is a male, the University did not give him this kind of opportunity. “Similar allegations, when made against female students or employees, are more likely to be treated leniently or even disregarded,” says Waters. “But for his gender, he would have been permitted to continue working under the terms of a performance improvement program” his lawyers wrote.

    Waters also claims he was used as a scapegoat as part of the University’s effort to impress the U.S. Department of Education in connection with the Department’s ongoing investigation into OSU’s alleged mishandling of sexual misconduct complaints. An agreement with the Department was reached just weeks after the University terminated Waters.

    The lawsuit seeks a minimum of one million dollars in damages and a court-ordered name-clearing hearing. Waters is also seeking attorneys’ fees and reinstatement as OSU’s marching band director. OSU has released a statement saying that the lawsuit lacks substance and merit. “Jon Waters concealed and shielded cultural problems within the band and took it upon himself to take corrective action” spokesperson Chris Davey wrote. “Ultimately, whatever efforts he might have taken were incomplete and ineffective at protecting our students and failed to meet the standards this University has for those responsible for our students.”

    This case is another example of how the ever-changing Title IX climate has practical as well as legal implications for all colleges and universities. At an increasing rate, students who have been accused of sexual misconduct are suing their institutions under Title IX, while complainants use the same statute to sue their institutions for allegedly failing to properly investigate claims of sexual assault. Although not currently seen as often, institutions must also consider the potential for employee lawsuits filed under the umbrella of Title IX.

    If you or your institution has any questions or concerns regarding education related issues, please contact Cynthia A. Augello at caugello@cullenanddykman.com or at (516) 357-3753. This article was written with Hayley Dryer, an associate at the firm.