Ohio State Chose ‘Scapegoat’ Amid Probe, Band Leader Says

COLUMBUS (CN) - Ohio State University fired the director of its marching band to stop the government's harassment investigation, he claims in Federal Court.

John Waters says he made it his mission last year, while ascending from interim director to full-time director of the school marching band, to improve the musical performances and repair the "entrenched" hierarchical and demeaning culture at the school that dated back to the 1930s.

Though OSU praised Waters' no-tolerance policy for hazing and his other efforts to crack down on substance abuse and other inappropriate behavior, that good will was lost when the Department of Education publicly announced an investigation into OSU for "possible violation of federal law over the handling of sexual violence and harassment complaints," according to the complaint.

Waters says the mother of a former band member had requested the investigation after she alleged "that the band's culture was sexualized." This allegedly prompting the issuance of what Waters called "a deeply flawed and incomplete report" from the assistant vice president of compliance operation and investigations.

That report was "skewed and distorted more to appease the Department of Education than to afford due process to Waters," the 46-page complaint states. Waters says the report also "was riddled with factual errors, material omissions, and results driven.

"The deeply flawed [report] then formed the basis of OSU's decision to terminate Waters, less than two months after he was praised by OSU for his 'courageous' efforts 'tackling some of the more extreme views [of the OSU Band] head-on,'" the complaint continues.

Though the OSU Band had 240 members and roughly 4,300 alumni, the report allegedly included interviews with just 10 individuals.

"At least three of ten current members or alumni interviewed have objected to how their comments were misconstrued," the complaint states.

Waters says Executive Vice President and Provost Joseph Steinmetz used the report to give him an ultimatum on July 23, 2014: "either resign by 5:00 pm or be fired." Though this marked the first time he had seen the report, Waters says the school would not give his counsel "more time to read and respond."

Waters was allegedly terminated the next day.

The Department of Education ended its investigation early on Sept. 11, 2014, making "explicit reference to Waters and his termination, citing it as one of the reasons why the Department of Education was ending its investigation prior to the completion of its review of all OSU's issues," the complaint states.

"In other words, Waters was a scapegoat," it continues.

Waters, of Galena, seeks reinstatement, his name cleared and punitive damages, alleging violations of his 14th Amendment rights.

He says his work with the band during the 2013-14 football season brought the school nationwide acclaim.

"The NBC 'Today' show broadcast nationally a live performance of the OSU Band, and the OSU Band's performances were YouTube sensations, with millions of viewers watching their performances each week," the complaint states. "And indicative of just how much its popularity had grown, the OSU Band was featured in Apple's 'Your Verse' commercial for the iPad Air."

When the school made Waters a scapegoat, his "good name was dragged through the mud on national news channels, newspapers and the internet, and Waters and the OSU Band became fodder for unjust ridicule and embarrassment," the complaint continues.

Waters says OSU had previously used his fame to help raise millions of dollars for its 'But For Ohio State' fundraising campaign.

The defendants "had an obligation to provide a fundamentally fair and reliable investigation process when affecting Waters' liberty and property interests, and that fundamentally fair and reliable investigation process must meet constitutional due process requirements," the complaint states.

Claiming that the school also violated Title IX, the federal civil rights law that prohibits sexual discrimination in education, Waters says "similarly situated female employees have been treated more favorably under similar circumstances."

One "female cheerleading coach who was the subject of an investigation in 2013 involving sexualized behavior in the cheerleading crew," for example, was not fired, but instead was provided "with an opportunity to correct the concerns identified in the investigation and resulting report," the complaint states.

Waters is represented by David Axelrod of Shumaker, Loop & Kendrick.

The complaint names as defendants Ohio State University, President Michael Drake, and Executive Vice President and Provost Joseph Steinmetz.

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