In response to a complaint by a parent, Ohio State University launched a two-month investigation of its nationally renowned marching band. That investigation led to the firing of band director, Jonathan Waters. Waters had served as band director since October 2012, but he had been an assistant band director for a decade previous to that.
Business Insider has provided a concise summary of the major findings of the investigation, which were initially reported in the Columbus Dispatch:
“Several of the marching band’s traditions stemmed from offensive, often sexualized, nicknames given to new ‘rookie’ members, according to the investigation. Nicknames given to rookies mentioned in the report include ‘Twinkle Dick,’ ‘Jizzy,’ and ‘Jewoobs’ (given to a Jewish student with large breasts).
“The report states that rookies would often learn tricks associated with their nicknames. Here are some examples:
–A female student sitting on laps and pretending to orgasm. This included her sitting on her younger brother’s lap and pretending to orgasm on ‘make the Band night.’ Her nickname was ‘Squirt.’
–‘Two females rubbing their chests together. Their nicknames were ‘Jewoobs’ and ‘Tiggles.’
–A male student scooting across the floor on his hindquarters. His nickname was ‘Taint Brush.’
–A male student stamping other students’ foreheads with a penis stamp. His nickname was ‘Mushroom Stamp.’
“Another major tradition—which Waters reportedly ended this year—was ‘Midnight Ramp,’ where marching band members would march into the OSU stadium at midnight wearing only their underwear. While not every student participated in the midnight march, the report notes that some band members would march naked or go to Victoria’s Secret beforehand to purchase proper underwear.
“Alcohol was also reportedly a significant aspect of OSU marching band culture, with one student suffering alcohol poising a few years ago at Midnight March. According to the report, one student ‘described her first year in the Marching Band as ‘culture shock’ and cited alcohol consumption at away football games as an example. Several students stated that alcohol use and abuse is a large part of the Marching Band’s culture.’”
Waters’ attorney has asserted: “’Jonathan tried as hard as he could within the constraints imposed upon him to change that culture. He did his absolute best.’” The Dispatch article does seem to confirm that, as Band Director, he did make some significant changes, but it also suggests that much more change in the “culture” was obviously needed.
The full article at Business Insider is available at: http://www.businessinsider.com/ohio-state-marching-band-investigation-reveals-sexual-harassment-2014-7#ixzz38UOpU6uX
The full text of the article in the Columbus Dispatch is available at: http://www.dispatch.com/content/stories/local/2014/07/24/ohio-state-band-waters.html
The full text of the report is available at: http://www.dispatch.com/content/downloads/2014/07/Investigation-Report.pdf
I read the Ohio State report, and I’m very skeptical of what they conclude. First of all, a “sexualized” culture is not the same as sexual harassment. There are remarkably few examples of any kind of sexual harassment offered in the report. And Waters hardly seems responsible for a long-existing culture in the band, one that he has improved. If a “sexualized” culture where drinking occurs is sexual harassment, then almost every fraternity on most campuses would have to be shut down.
Actually, I don’t see much difference between what was occurring with this marching band and the hazing that has led to penalties being imposed on several fraternities and sororities at the University of Connecticut (See https://academeblog.org/2014/05/12/sorority-banned-from-university-of-connecticut-campus-in-part-for-making-pledges-sizzle-like-bacon/).
I am not sure if it should be called “sexual harassment” or if that term should be restricted to sexually inappropriate behavior related to employment. But clearly the behavior is sexually inappropriate if new students are feeling compelled to engage in it in order to participate in a university-sponsored activity or to belong to university-endorsed groups.
In fact, these kinds of decisions seem to me to be very appropriate for colleges and universities to make, as opposed to decisions involving accusations of sexual assault, which I have argued previously need to be investigated by law enforcement as crimes, with our institutions fully cooperating with and facilitating those investigations.
For some sense of how Waters tried to “change the culture” listen to a recording released by OSU today of him berating a student, which you can access via the Chronicle of Higher Education’s website here:
http://chronicle.com/blogs/ticker/listen-to-an-audio-clip-of-ohio-states-ousted-band-director-cussing-out-a-student/82689
This is not sexual harassment, but it sure sounds like plain-old-fashioned verbal harassment to me.
It would appear that some AAUP members/leaders need to consult a primer on the form of sexual harassment called “hostile environment.”
I’m quite familiar with hostile environment sexual harassment. One thing it requires is an actual complaint of sexual harassment, which apparently never happened (a parental complaint led to all this). Second, it requires substantial impairment of academic opportunities (http://www.aaup.org/report/sexual-harassmentsuggested-policy-and-procedures-handling-complaints), and it’s not clear that this was the case. Unlike the Connecticut case, no one was hospitalized and no one appears to have been forced to participate in hazing-like activities. It’s an interesting question: can you fire someone for failing to do enough to stop a sexualized culture in which there is no actual sexual harassment allegation that’s been proven?
First of all, a word search at the AAUP Webpage linked in the reply comment reveals no incidents of the phrase “hostile environment” — thus, quod erat demonstrandum. Hostile environment is a special subset of legally proscribed sexual harassment.
The absence at the AAUP Webpage contrasts with the 34 occurrences of “hostile environment” discussion in the DOED Office for Civil Rights’ guidance at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
EEOC guidance includes the following:
“Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
– The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
– The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
– Unlawful harassment may occur without economic injury to, or discharge of, the victim.
[…]
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”
http://www.eeoc.gov/laws/types/harassment.cfm
Thus, a parent appears to have legal standing to bring a complaint or suit; further, a parent’s complaint would likely also be perceived by the courts as representing the objections of the child as well, a student exposed to the hostile environment. The parent may serve as the agent of the student and no court in the nation would dismiss a case on the sole grounds that the student son or daughter did not him/herself directly complain.
Further, a public university is a public forum and therefore the victims of hostile environment obviously may include members of the public in addition to students and staff, any of whom might reasonably find the the environment to be “intimidating, hostile, or offensive to reasonable people”. The OSU administration therefore appears to have taken steps to meet the requirements of the Federal legislation binding upon the institution; failure to do so could have endangered all Federal funding to OSU, from student loans to scientific grants, etc.
Additionally, a claim of hostile environment permits Federal court plaintiffs to cite incidents which would normally be time-barred by linking such past events to incidents which did occur within the requisite time frame under the law (cf. the Supreme Court ruling, with majority opinion by Justice Thomas, in Amtrak v. Morgan, http://www.law.cornell.edu/supct/html/00-1614.ZO.html).
Just to clarify, a parent cannot file a sexual harassment suit unless the child affected is under 18. And members of the general public cannot file sexual harassment claims. You have to be a student or employee.
From a quick Google search on the Web:
“Many individuals, from pregnant teens to victimized gay students to angry fathers, have filed Title IX complaints or law suits under the Federal law, and a number of them have been awarded substantial monetary sums.”
http://www.feminist.org/education/consequences.asp
“Ohio State fired Waters, 38, after a university investigation found a cascade of evidence that students in the band routinely harassed one another –– often directed from older students to newcomers –– and that Waters ignored complaints about those traditions.
[…]
University investigators found that Waters knew of several traditions and allowed them to continue. The report also found that he mishandled a report that one band member sexually assaulted another: Waters tried to discipline the female victim along with the male student, but Ohio State reversed the decision.
[…]
The investigation, triggered by the complaint of a parent, included interviews with Waters, his staff and some band members. Federal rules required a conclusion to the inquiry within 60 days, but Ohio State is planning a wider investigation that will be led by former state Attorney General Betty Montgomery.
[…]
One student reported that Waters texted dirty limericks to some band members. Axelrod declined to comment on specific accusations yesterday, saying he has not had time to investigate.”
http://www.dispatch.com/content/stories/local/2014/07/24/ohio-state-band-waters.html
Reposting these excerpts from a quick Google search because the blog software appears not to respect the columns in embedded comments (at least not in the Chrome browser):
“Many individuals, from pregnant teens to victimized gay students to angry fathers, have filed Title IX complaints or law suits under the Federal law, and a number of them have been awarded substantial monetary sums.”
http://www.feminist.org/education/consequences.asp
“Ohio State fired Waters, 38, after a university investigation found a cascade of evidence that students in the band routinely harassed one another –– often directed from older students to newcomers –– and that Waters ignored complaints about those traditions.
[…]
University investigators found that Waters knew of several traditions and allowed them to continue. The report also found that he mishandled a report that one band member sexually assaulted another: Waters tried to discipline the female victim along with the male student, but Ohio State reversed the decision.
[…]
The investigation, triggered by the complaint of a parent, included interviews with Waters, his staff and some band members. Federal rules required a conclusion to the inquiry within 60 days, but Ohio State is planning a wider investigation that will be led by former state Attorney General Betty Montgomery.
[…]
One student reported that Waters texted dirty limericks to some band members. Axelrod declined to comment on specific accusations yesterday, saying he has not had time to investigate.”
http://www.dispatch.com/content/stories/local/2014/07/24/ohio-state-band-waters.html
On “standing” before the DOED Office for Civil Rights (because this blog discussion might be construed as discouraging witnesses and/or indirect victims of hostile environment from filing complaints):
“Who Can File?
Anyone who is a victim of sex discrimination in a federally funded educational institution or program can file a Title IX complaint. Whether you are a victim of peer-on-peer sexual harassment, whether your athletic team is denied resources that the same team of the opposite sex regularly receives, or whether you believe that the standardized test you are taking is genderbiased, you have the right to use legal means to challenge these violations of federal law. In many instances you may file a complaint even if you are not the direct recipient of discrimination, but have knowledge about the discrimination. In contrast to many legal jurisdictions including federal courts, many state courts and most state administrative procedures, where the individuals who file must be actual victims of discrimination and establish ‘standing’ as having been discriminated against, OCR procedure is more lenient. Within the federal administrative remedies under the Office for Civil Rights, a well documented complaint may be fielded by citizens and standing is much less of an issue.
If someone you know is a victim of sex discrimination, be it your daughter, younger brother, neighbor, or student, you have the right to file a complaint on their behalf. Since the Supreme Court’s 2005 decision in Jackson v. Birmingham Board of Education, Title IX also protects those who report Title IX violations on behalf of direct victims from retaliation by the institution. (The OCR’s electronic complaint form invites documentation of grievances that are either retaliatory or directly discriminatory in nature.) The Jackson decision protects whistleblowers and ensures that Title IX Coordinators and other concerned parties can report
violations and facilitate and/or file complaints safely, and thus be more effective in reducing sex discrimination in education.”
http://www.feminist.org/education/pdfs/JL%20Winning%20cases%20paper%2011-29-06.pdf
Here is an interesting addition to this discussion by “Jewoobs.”
http://www.thebuckeyebattlecry.com/2014/07/a-former-band-member-named-in-the-tbdbitl-investigation-report-speaks/
While the woman referred to as “Joobs” (“Jewoobs”) may now be affirming that she herself had not been offended by the use of that moniker but is now offended by the reporting of its use (and the harassment she receives from others through social media etc.), it is not only those who are the target of such names who have the right to file complaints with the US DOED Office for Civil Rights:
“Who Can File?
Anyone who is a victim of sex discrimination in a federally funded educational institution or program can file a Title IX complaint. Whether you are a victim of peer-on-peer sexual harassment, whether your athletic team is denied resources that the same team of the opposite sex regularly receives, or whether you believe that the standardized test you are taking is genderbiased, you have the right to use legal means to challenge these violations of federal law. In many instances you may file a complaint even if you are not the direct recipient of discrimination, but have knowledge about the discrimination. In contrast to many legal
jurisdictions including federal courts, many state courts and most state administrative procedures, where the individuals who file must be actual victims of discrimination and establish “standing” as having been discriminated against, OCR procedure is more lenient. Within the federal administrative remedies under the Office for Civil Rights, a well documented complaint may be fielded by citizens and standing is much less of an issue.” http://www.feminist.org/education/pdfs/JL%20Winning%20cases%20paper%2011-29-06.pdf
In short, the concept of “hostile environment” as a form of sexual harassment/discrimination is indeed not as well understood by the general public. No matter who tells the jokes and/or who laughs at them, if they are permitted to create a hostile environment for anyone, affecting their full enjoyment of rights to participate in the programs and services of an educational institution, then Ohio State, etc., et al., you have a problem