The Anatomy of a Scandal
Understanding the Ohio State Band Investigation
If you’ve followed the Ohio State University Marching Band scandal, you might have noticed that it’s not following the usual college scandal path. It’s not fulfilling the usual promise of ever-increasing new misdeeds and coverups. In fact, there haven’t been any reports of misdeeds or coverups at all. All we’ve heard is hundreds of former band members stating that this report does not depict the band’s culture at all. This even includes two [now three] band members who were interviewed for the report. From President Drake and the administration, we’ve heard a fair amount of silence, more misdirection, and even a few statements now known to be false.
To an outsider, this may look like a simple he-said, she-said, with the OSU administration on one side and the band alumni on the other. The reality is, this is only true if you never read past the headlines.
OSU’s Title IX investigation of the band produced a report which at first glance seemed incredibly damning. So how is it possible that anyone could dispute this document? The biggest problem with the report is not in what it says, but in what it does not say.
The report omits the fact that the vast majority of the activities alleged to have happened did not occur in class time, or performance time, or any other official duty time of the band. This is important because claiming a hostile environment of sexual harassment requires that people are exposed to this environment unwillingly. If people have a choice to avoid the environment without harming their ability to participate in the program, then no harassment has occurred.
This raises the question of whether they had a choice to attend these parties. People have in their heads a college environment similar to a fraternity rush, where party attendance and participation is mandatory. But the reason people have this in their heads is that the report omits two other important facts. First, the only way in or out of this band is a rigorous tryout process that measures only musical skills and marching skills. There is no other criteria that is or can be used. Skills are scored numerically, and overseen by band staff. Second, none of the activities described in the report would have occurred before or during marching band tryouts. Even veteran band members must try out for the band, and it’s an exhausting multi-day affair. There are no wild parties and no opportunity for these alleged activities to take place until after band membership was already secure.
By omitting these facts, everyone leaves this report with the impression that students were required to go through all sorts of hazing rituals to get in the band, just because this is a common college story. Had the report included this information, they would not have been able to claim a hostile environment exists. College students doing things on their own time at parties that are not required, and by the structure of the band can’t even possibly be required, are completely outside the scope of Title IX sexual harassment rules.
Is it possible that the investigators were simply not aware of this distinction? Not really — it was their duty to find precisely this information in order to make their case. To further make this point, note that I said that you leave the report with the impression that these activities were required. This is because the report never explicitly states this. Given that this is an essential element of the case they were trying to make, it’s wildly unlikely that the lawyers who wrote it would simply forget to directly include this claim.
The report hasn’t mysteriously changed since it was released. The issues of the wording of this report should have been a red flag from the start that this report had serious problems. But people were too distracted by the tawdry nature of the claims.
In light of the omitted facts, and the lack of a direct claim of required activities, this entire report is reduced to a cheesy story you might find on BuzzFeed: “Ten Bizarre Things College Kids Do At Parties”. It plays great for the media, and the Bizarre Things left a lot of people upset, but there’s not an actual description of harassment to be found in the report.
Another notable and obvious problem with the report is the lack of actual sexual harassment complaints. If a decades-old culture was so toxically sexually harassing, shouldn’t there have been a graveyard of past complaints? This particular red flag is such a glaring omission that the report addresses it directly:
“In a culture so sexualized for so long, students’ acquiescence and failure to complain cannot be taken as evidence that the range of this misconduct was welcome.”
This is what fiction writers call “hanging a lantern on it”. If you have a plot hole that’s enormous and obvious, you can rewrite your script. Or you can just have one of the characters scratch her head and point at the plot hole and say “Hey look at that, that’s weird” and you’ve successfully misdirected the audience. This statement should have been another red flag.
In the absence of any real evidence, or any real connective tissue, the conclusion of this report is essentially this: because the band is sexualized, there must be sexual harassment. Given that they have shown only that some band members, on their own time and separate from any official band function, are sexualized, that alone should discredit the conclusion.
But even this legally useless connection, seemingly intended solely for public consumption, is unsupportable. To try to make the leap from “sexualized” to “sexual harassment” is to misunderstand what sexual harassment is and how it works.
Sexual harassment and sexual assault are not about the sex. That thinking went out when we (most of us) decided to stop asking rape victims what they were wearing at the time. It’s offensive that the report’s logic boils down to this, and it should have been one of the most obvious red flags that this report is junk.
The report fails to provide the needed proof of an environment of sexual harassment, while it seems to intentionally leave out evidence that would exclude sexual harassment. Meanwhile it uses Orwellian doublespeak to misdirect you from noticing that it hasn’t proven anything.
This doublespeak has continued after the report. Jon Waters was fired with the claim that he did nothing to fix this culture in his short two years as director. Waters contends that he did far more than anyone else had ever attempted, and offered a detailed list of changes he made. The University’s response is interesting:
“The former director has yet to produce any factual examples that demonstrate any tangible attempts to change the band culture”
This sounds fine at first glance, until you notice that they are not claiming he is lying. They are not claiming that he did not attempt to make these changes. They are basically saying that they don’t see the evidence.
This is ludicrous. The evidence is readily available in the eyewitness testimony of anybody in the band for the past two years. The evidence was there, and ignored, before the first report was written. The OSU administration doing the legal equivalent of sticking their fingers in their ears and chanting “La la la I’m not listening.”
Worse, this claim has become particularly embarrassing for the University, as they have released Waters’ most recent performance evaluation which praises him for the making “courageous” changes to address the longstanding cultural issues of the band.¹ This also undercuts other University claims that they did not previously know about the band’s issues.
Another significant blow to the credibility of this investigation is that two women [and now one man also⁴] who were interviewed for the report have come forward and made it clear that the report does not accurately represent their own testimony.²⁻³ Complaints range from a failure to ask important questions, to vast omissions of any and all favorable testimony offered, all the way up to and including attributing statements to one of the women which she says she never made.
This is a particularly surprising development when you consider that the witnesses were not randomly selected, but were selected by the complainant as being likely to have additional complaints about the culture.
The University has made some serious mistakes in their preparation of this report. But they’ve made some that could open them up to significant legal problems. For example, some band members use their band nicknames all the time in every day life. This means that the report has identified these women and tied them to the culture claimed in the report. This is probably a violation of the Family Educational Rights and Privacy Act, which requires that student records can’t be released that contain identifying information. Worse, they have also potentially libeled these women by including their names here, and ironically may have sexually harassed them by linking them publicly to this culture.
Similarly, Jon Waters was probably wronged on several levels. The 14th amendment provides protection from state employees against dismissal without due process. He probably has an excellent case on these grounds alone. But also, he most likely has an excellent Title IX claim against Ohio State. They’ve publicly humiliated him with libel (given that they’ve offered no evidence to back up their claims) of a sexual nature, resulting in the loss of his job. With all seriousness, this is a far stronger Title IX case than the one OSU has put together against the band and Waters.
More broadly, OSU students are reporting that what had been a point of pride on their resumes, participation in the band, has turned into a blemish that counts against them during job interviews. In the absence of any evidence to back up their claims, Ohio State has actually libeled or slandered everyone associated with the band.
These libel claims carry an extra edge to them. After the report was released, several news outlets made claims that the alleged activities were things that students had to do in order to participate in the band. The report never made any such claim, and one would hope that in normal circumstances Ohio State would pursue such errors and demand corrections. But it seems in this case they have not. OSU’s failure to address these errors may itself be actionable.
I’m not actually suggesting that anyone bring a lawsuit. It’s simply a measure of the impressive degree to which Ohio State has completely mishandled this case at every possible level.
If you’re still with me, that leaves the obvious question: why would such an amateurish report have been put together and used, when the University at large has suffered so much damage right alongside the band?
There are a few different theories out there. One is that the University hoped to gain some cover, as they are being investigated by the Department of Education for university-wide Title IX issues. Perhaps this was intended to be a bone to throw to them, or a show of taking this all seriously. If either of these were the case, they have completely failed, only underscoring the University’s incompetence at handling such cases.
Another theory swirling around the rumor mill relates to departmental issues and control of the band. The band involves a lot of money and prestige. Ironically, Jon Waters’ success has only raised the prestige of the band. Much like the other theory, if this is true, it has backfired by turning into a huge national scandal, damaging the reputation of the band, and turning it from a hot commodity into a hot potato.
Even if the cause of all of this was a well-intentioned belief that there were problems in the band, this is perhaps the worst-handled scandal in the history of university politics. For whatever reason, it seems that someone at Ohio State tried to shoot the University in the foot, but missed, and shot it right in the heart instead.
- ABC News article regarding Waters’ review.
- Article at nbc4i.com, including full letter from witness.
- Public facebook letter from “Donk”.
- UPDATE: another witness has come forward.
- A detailed legal analysis of the report.
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