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Ohio State's marching band firing went beyond vulgar nicknames, college pranks

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Even though the report dropped last week, Waters and Ohio State haven't been out of the news.

Gregory Shamus

Five days ago, the bombshell dropped that Ohio State fired beloved marching band director Jon Waters over a litany of offenses detailed in a large report, chief among them the charge that the culture around TBDBITL had become over sexualized. This became a national story, given the prominence of the marching band, and as some debated whether the firing was justified.

Since last Thursday, there have been a few important developments in the story. Here is what you might have missed.

First, it is important to point out that Ohio State did not reach this conclusion solely because of say, inappropriate nicknames and the Midnight Ramp tradition of marching onto the field in their underwear. Ohio State's report also indicated that Waters had sworn at a student, and the Columbus Dispatch obtained an audio recording of the incident. We wrote about the incident here (and you can also listen to the recording), and while that incident alone was probably not enough to justify dismissal, coupled with the rest of the charges made by the university, it can look more serious.

Perhaps the most serious allegation in Ohio State's report pertained to how Waters handled an actual sexual assault on a trip to the 2013 Big Ten Tournament. 10TV spoke to the alleged victim, who claimed that Waters had punished her, also that Ohio State athletic director Gene Smith was involved in the decision making process, a claim that Ohio State denies:

"He [the assailant] had gotten her in his room and grabbed her, pushed an erection against her and groped her," her father explains.  "She broke free of his embrace and fled the room."

She reported it to then-director Jon Waters, who told her he took it to the Athletic Department.  The victim says Waters and Athletic Director Gene Smith decided to remove her and the attacker from the tournament band in response.

She says the decision wasn't fair.

"I was being punished for being the victim of something," she tells 10TV.  Her father says she felt like she did something wrong.

The victim and her father both wrote an email to Waters, saying she didn't agree with the decision.  However Waters stayed firm, so she went to the school's Title IX coordinator, who said it was a violation of the law.

The victim says the coordinator talked to Waters and the NCAA and was allowed back on the trip.

The Ohio State report also specifically mentions this assault, and how Waters responded. From the report:

Significant concerns were raised at the time about the manner in which Waters responded to the March 2013 incident. Both Legal Affairs and this Office had to intervene with Waters to ensure Waters reverse a decision that, if not corrected, would have led to a possible violation of Title IX. Specifically, a female Band member alleged sexual harassment by a male Band member, and Waters initially decided that both individuals would be excluded from the next Band trip. As this decision could have been construed as retaliation against a student for raising a Title IX complaint, Waters was advised that the female student must be allowed to take part in the trip. Both Legal Affairs and the Title IX Coordinator then offered additional consultation, training, and resources to the Band. An in-person meeting was held with Waters to discuss Title IX issues, and additional trainings were recommended. Although he agreed at the time, Waters made no effort to schedule any training until after a sexual assault in Fall 2013, when the Title IX Coordinator again stated that such training was required.

Emphasis ours.

These allegations here go beyond what might be considered just "college kids being college kids", but instead speak to the extremely serious allegations that responses to sexual assaults were not adequate, and in line with both university policy, and the law.  The fact that Waters allegedly did not complete recommended HR training on this matter is also of note, something that would get somebody in trouble at most workplaces, regardless of performance.

While Ohio State says that Gene Smith was not involved in the specific incident above, he was asked how he felt about Waters' dismissal yesterday. Smith says that while he was informed that the decision might happen two days before, that was the extent of his involvement with the process. He added, though:

"I support the decision, I think it was the right decision," Smith said. "However, I want to let the process play out."

Many people have been very upset by this decision. Chief among them, as you might expect, is Jon Waters, who might not take this decision lying down. Woods' attorney, David Axelrod (not the former White House staffer), said the following to the Columbus Dispatch:

"Jonathan has not decided precisely what action he will take," Axelrod said. "He intends to defend his good name in one way or another."

Axelrod gave a similar quote to the Toledo Blade:

"This was a shock," ... "Jon bleeds scarlet and gray. I'm sure you can imagine this was a terrible disappointment to him. But we disagree with the way he has been described and Jon's going to fight to clear his good name."

Since last week, neither Axelrod or Waters has said anything to indicate what their next step will be, but it will certainly be something else to monitor.

Another group that isn't thrilled about this dismissal include many former TBDBITL members. In yesterday's "Why Is This News?", we wrote about a petition on Change.org calling to reinstate Woods as director, a petition that has over 6,200 signatures, as of this morning.

They aren't the only group. On Monday, a small group of TBDBITL alumni, most of them women, marched across campus, demanding Waters' reinstatement. From the article:

One of the march organizers, Lori Cohen, who was in the band from 1986 to 1990, said marchers want to represent the perspective of women who were in the band. The university report that led to Waters' firing says they were victims, she said, but they were not. 

"We don't believe it's a sexualized culture, we believe it's a college culture." The report, she said, focused only on the negative: "They were small incidents pulled out of the entire context." 

About a dozen of about 15 marchers are women. Cohen and other women on the march said they were never harassed and that male band members were protective of them.

The Columbus Dispatch article mentioned that while a few letters to their editor have been in support of the university, the majority have been in support of Waters. For what it is worth, I've had the chance to talk to a few previous members of TBDBITL myself, and the sentiment there was universally in support of Waters.

However, the university may have had no choice but to fire Waters, according to Erin Buzuvis, a law professor and the founder of the Title IX blog. In an interview with Cleveland.com, she added the following:

"In the report it is easy to get lost in the salacious details of what the students were doing to each other, whether it be the nicknames or the sexualized tricks and challenges posed to each other," Buzuvis said. "But the really important part of that report was every time they noted that the band director either knew or should have known what was going on. From a legal standpoint the fact he used sexual nicknames with students showed he knew the process was going on and the staff supervised the underwear march into the field."

She said so much detail made it impossible for Waters to say he just became aware of what was occurring and would correct it and the university could keep him on.

"I do not want to presume they acted only on liability," she said of Ohio State firing Waters. "Student welfare likely entered into their equation."

Given the potential Title IX ramifications as well as some of the other HR mishaps, it becomes clearer why Ohio State took the actions they ultimately did.