President Michael Drake205 Bricker Hall
190 North Oval Mall
Columbus, Ohio 43210
Attention: Secretary for Board of Trustees210 Bricker Hall
190 North Oval Mall
Columbus, Ohio 43210
Dear President Drake and Board of Trustees:
My name is Jeff Cox. I am an attorney-at-law, author, historian, Columbus, Ohio, native currently living in Indianapolis, and proud alum of The Ohio State University Marching Band (“Band”). I am also the son of two Ohio State graduates, both of whom received their undergraduate and graduate degrees from the School of Journalism, one of whom just retired after four decades as a political journalist. Despite being raised in Indiana, both my loyal Ohio State Buckeye parents raised me as a loyal Ohio State Buckeye. At this point, the current Ohio State University (“University”) administration’s handling of the allegations against Jon Waters and the Band – and at this point they are just allegations – has us questioning that loyalty, and whether that loyalty is being returned by the current administration.
“Loyalty” is not just the emotional basis but the legal basis for the glaring faults with the current administration’s handling of the allegations against the Band, which I will boil down to three major points.
1. Report Dated July 22, 2014 issued by The Office of University Integrity and Compliance (“Office”) under the authority of Chris Glaros, Assistant Vice President for Compliance Operations and Investigations (“The Glaros Report”).
During my tenure as an attorney with the State of Indiana, I was periodically tasked with investigating possible wrongdoing and composing reports detailing the allegations of wrongdoing, the evidence of said wrongdoing, and the legal conclusions drawn therefrom. As a litigator, it is my job to review and analyze reports of alleged wrongdoing. As an author, I have investigated various questions of history and assembled the evidence into various history articles. It was those articles that eventually got me invited to write my book Rising Sun, Falling Skies; The Disastrous Java Sea Campaign of World War II, which itself contains elements of reporting and investigation. It was with this experience in mind that I read the Glaros Report.
I found the Glaros Report indeed shocking, though not for the reasons you might believe or perhaps wish. I was a member of the Band from 1989-1993. I witnessed most of the behaviors described in the Glaros Report at one time or another. I didn’t like it and didn’t take part in any of it, including the Midnight Ramp. I made clear that I did not like it and as a result I received no pressure whatsoever to take part in it. No nicknames, no insults, nothing. How this comports with the general references to “peer pressure” and a “sexualized culture” made in the Glaros Report is, at best, unclear.
No, the most shocking part of the Glaros Report was its legal conclusions and the structure of its narrative as well as the underlying investigation. I use the terminology in that order deliberately, as it appears the legal conclusions were written before the narrative was prepared, which in turn seems to have been done before the investigation was concluded or possibly even begun. This is a completely improper procedure for investigating allegations of wrongdoing.
Some of the most egregious examples:
Sample Size – Page 3 of the Glaros Report states “Conclusions were made using a preponderance of the evidence standard.”
Yet, Pages 3 -4 state that the investigators contacted 5 Band members, including the Complainant’s Child. The investigators contacted 6 Band alumni, including Jon Waters. Furthermore Page 3, Footnote 3 states:
The complainant and witnesses recommended specific people to interview and we have talked with or tried to contact each of them. As of July 15, 2014, we were still receiving information from some of the witnesses interviewed. […W]e did not randomly interview current Band members for this investigation.”
In other words, the investigators contacted 5 Band members, including the Complainant’s Child, out of 225 Band members. The investigators contacted 6 Marching Band alumni, including Jon Waters, out of thousands of Band alumni. That is by itself an awfully small sample size to defame the entire Band. Even worse, Footnote 3 by itself appears to confirm that the investigators only contacted people recommended by the Complainant and the Complainant’s witnesses.
It’s easy to establish a preponderance of the evidence if one looks for and considers only evidence supporting one side of a case. This is not a method for seeking truth but a method for finding someone guilty.
Glaring Contradictions – As stated earlier, Page 3 of the Glaros Report states “Conclusions were made using a preponderance of the evidence standard.” Yet Page 5 contains the following statement:
Most witnesses indicated that participation in Midnight Ramp was not required. Some witnesses stated that students not participating in the tradition would receive negative treatment from other students and staff. Other witnesses stated that there were no consequences for not participating, while one witness stated that she was “told not to talk about it outside of the Band.”
By the Glaros Report’s own admission, “Most witnesses indicated that participation in Midnight Ramp was not required.” By the preponderance of evidence standard the Glaros Report states is used, the Midnight Ramp was not required. Yet the Glaros Report never makes this clear. Moreover, the use of the term “some” to indicate the witnesses that said “students not participating in the tradition would receive negative treatment from other students and staff, as opposed to the term “most” witnesses used in the previous sentence, is also revealing, and indicative that “most” witnesses in fact did not receive negative treatment.
Thus, by the standards explicitly stated in the Glaros Report, the Midnight Ramp was not an issue and should not have been included in the Glaros Report at all.
Factually Unsupported Statements and Misleading Language – Page 4 contains statements that the Midnight Ramp was “oversee[n]” by Waters or “under Waters’ direction.” This is a factual error. A more accurate term might be “monitor.” The use of “oversee” and “direction” suggests Waters controlled it. While Page 5 references an alcohol poisoning incident that occurred “five or six years ago,” after which staff agreed to monitor the event to make sure nothing like that happened again, none of the alleged witness statements mentioned in the Glaros Report support the conclusion that Waters “over[saw] or “direct[ed]” the Midnight Ramp. This was terminology chosen by the author of the Glaros Report, not by the witnesses.
Factually unsupported statements and misleading language appear throughout the Glaros Report. The previous example of the Midnight Ramp included the statements that “most” witnesses said the Midnight Ramp was not required, but “some” said there was “negative treatment” if one did not participate. “Most” and “some” are not defined, which is by itself suspicious given that the relatively low number of witnesses interviewed should have indicated actual numbers of witnesses speaking to each. “Negative treatment” is not defined. At all.
There is far more where that came from. Page 8 contains the statement:
Several witnesses indicated that new Band members were subject to “Rookie Introductions,” which occurred at the front of a moving bus en route to away games. These sometimes included sexually explicit questioning and dirty jokes. A witness stated that one such episode entailed using a dildo as a microphone. Another witness confirmed that sexually explicit Rookie Introductions occurred in the Fall of 2013.
“Sometimes included” does not properly indicate how often the introductions were of a sexual nature or how much of each individual introduction was sexual. I remember that mine was not sexual at all. Plus, a single account does not “confirm,” unless, perhaps, the “confirm” is a reference to the author’s own biases.
Page 15 is especially bad in this regard. It contains the statement: “The misconduct described above affected many students’ musical education through the Marching Band, some to a significant degree, as evidenced by feelings of regret and shame that were communicated in our interviews.” Except none of the witness statements quoted in the Glaros Report contain any statements of “feelings of regret [or] shame.” Furthermore, as stated above, the investigators by their own admission interviewed 5 band members, including the Complainant’s Child, out of 225 band members. The investigators contacted 6 marching band alumni, including Jon Waters, out of thousands of Band alumni. How, exactly, that constitutes “many” is somewhat unclear. And aside from the bald statement that “the misconduct described above affected many students’ musical education through the Marching Band, some to a significant degree,” there is no evidence in the Glaros Report that any student was affected at all, nor is there any explanation of any effect.
Page 15 also says “The subjects of the sexual harassment were impressionable and developing students.” Which seems like an obfuscation of the fact that the “subjects” of the “sexual harassment” were legally adults. Page 15 also states “We find that the Marching Band’s culture facilitated acts of sexual harassment under both university policy and Title IX, creating a hostile environment for students.” It is not clear from the Glaros Report that the alleged victims all agree. In fact, based on media statements made by several of the witnesses, it appears that they in fact do not.
While I would like to believe this was just the result of inartful writing, the totality of the Glaros Report and the current administration’s response thereto support the belief that this report was actually intended to give a false impression that would bring in Title IX.
Lack of Factual Integrity – This term is my own, a reference to the necessity to “show your work” but make allowances for confidentiality. Whether in my books or in my briefs, I must always show my work – my sources of information, my case law, so that they can be checked. My book, for instance, contains some 30 pages of end notes citing my sources. Nothing of the sort appears in the Glaros Report. With witnesses whose identities must be kept confidential, that is somewhat understandable, except there are methods of handling confidential witnesses, statements, and information that preserve the factual integrity of the report. Such methods include designation of witnesses, declaration of when and, if necessary, where the witness interview took place and by whom, additional information to give context to the witness statement, and even where the full transcript of the witness statement is located and how it may be acquired.
This is not rocket surgery, but basic investigatory and report-writing technique. Yet, again, except for a designation of witnesses that appears at the beginning of the Glaros Report and is never mentioned again, nothing of the sort appears in the Glaros Report. There is no easy way to even begin checking the work of the Office here. No way to verify the witness statements, no way to check for context. For all we know, most of these witnesses and their interviews do not exist and never did; in essence, the Glaros Report says, “Trust us.” Part of my practice involves criminal defense, where such conduct by the government is utterly unacceptable.
Even worse is the hearsay that appears in Glaros Report. For instance, Page 17 quotes Pam Bork, “Physical Therapy Manager with Student Health Services who volunteered for 18 years with the Band,” as saying other students (non-Band members) who were on the bus at the Cal game were “horrified” by the atmosphere. Not only is there no identification of who these people were, there is no indication they were interviewed at all. Page 17 also says Bork added that she was concerned that someone would get hurt and that she quit the Band because she believed “something bad was going to happen,” and then referenced a sexual assault that had occurred as what she feared could come to pass. The Glaros Report never gives any details of this alleged sexual assault.
I have plenty more examples of the shoddy work behind the Glaros Report. As a litigator, it is my professional opinion that this report could be easily destroyed in any court of law, so poorly written and conceived that it may not even be admissible – except to show defamation by the current administration.
Generally speaking, in both the private sector and in government law one cannot expect to turn in a report as poorly-written and conceived as the Glaros Report, let alone release it to the public, and expect to stay employed in assembling and writing such reports much longer. Yet the current administration has pointedly and repeatedly stood by the Glaros Report.
The current administration’s position thus changes things, and makes it look as if the Glaros Report is not the result of incompetence but of malice, that it is was not so much an investigation but an assassination. An assassination of character. Of Jon Waters. Of the Band and its alumni. Of The Ohio State University.
Which brings me to my second point:
2. The Public Handling of the Glaros Report.
Robert Conquest’s Third Law of Politics rather famously holds “The simplest way to explain the behavior of any bureaucratic organization is to assume that it is controlled by a cabal of its enemies.” That is, unfortunately, the most charitable way of explaining how the current administration has handled the Glaros Report.
As much of an abomination as it is, the Glaros Report could have been easily withheld under the investigatory or deliberative records exceptions to the public records statute until, at the very least, someone competent could have rewritten it. At least according to the public timeline, that was not done here.
The Glaros Report is dated July 22. The announcement of Waters’ firing was July 24. Granted, there was the deadline established by Title IX, but absolutely nothing in Title IX, the 2001 “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” statement or the April 4, 2011, “Dear Colleague” necessitated firing Waters. There were plenty of options, including censure, policy changes, or assignment of a Title IX coordinator that the Band has been lacking. But it appears none of these other options was even considered. Without considering these other options and apparently not even performing due diligence on the accuracy of the Glaros Report, the current administration quickly in that 2-day period chose the nuclear option: firing the best band director in the country, one who has been innovative in show design, who has brought excitement back to marching bands across the country, and has brought nothing but good press and energy to The Ohio State University.
None of the other possible options would have attracted much in the way of possible media attention. Firing the best and most famous college band director in the country was certain to get maximum media attention. And so it did. And it brought in with it the aforementioned shoddy Glaros Report that can easily be argued defames Waters, the Band and all its alumni to national media attention. Furthermore, little of the inaccurate sensationalized reporting by the media of the Glaros Report (i.e., alleging the Midnight Ramp was “hazing,” even though it fits neither a legal nor a practical definition) was corrected by the current administration, and may have in some cases even been abetted by it. The current administration did absolutely nothing to defend the University or the Band.
Even worse, the current administration decided to have a second investigation into the alleged “sexualized culture” of the Band, an investigation to be headed by former Ohio Attorney General Betty Montgomery. Not explained is why a second investigation into the alleged “sexualized culture” is needed if the first investigation into that same culture that resulted in the Glaros Report and the firing of Waters was so “thorough,” a word specifically used by the current administration. Montgomery herself has stated she will not reopen the first investigation that resulted in the Glaros Report. Not explained is how she can look into the alleged “sexualized culture” without reviewing the Glaros Report that supposedly documents that culture.
So the current administration “stands behind” (another phrase it frequently uses) the first investigation and the Glaros Report. But will have second investigation. That will look into the same subject matter as the first investigation. But will not look into the first investigation. Because the first investigation was so “thorough” that it does not need to be reviewed by a second investigation, even though that second investigation is supposed to cover the same subject matter.
Not even Monty Python could concoct a scheme that’s so preposterous. At least in the “Dead Parrot” sketch, Michael Palin tried to explain to John Cleese, however ridiculously, that the parrot was still alive. The current administration will not even do that, arrogantly responding to the increasing questions about the Glaros Report with a machine-like “Read the report.” As if somehow the current administration has the right to invoke papal infallibility.
No crisis management specialist worth the title would recommend handling the Glaros Report like this. Based on my own experience in crisis management and consultations with crisis managers, from the standpoint of the University and the Band, this situation has been handled in such a way as to do maximum damage to both. The current administration could not have damaged Ohio State more if it was trying. “A cabal of its enemies,” indeed.
Which brings me to my final issue:
3. Duty of Loyalty to Ohio State.
The President of The Ohio State University is not a king, nor a god, a potentate, a pope, an emir, sheikh, an emperor, or even a princeps. The president is an agent. Ultimately, so are the trustees. All are agents of the principal: The Ohio State University. In legal terms an agent is obligated to act in the best interests of the principal and only the best interests of the principal. As “Buckeye Battle Cry” says “Our honor defend, we will fight to the end for Ohio.”
Yet here there was no honor defended, and no one fought for Ohio, including and especially those whose duty it was to do so. The investigators at the Office of Compliance and Integrity did not have to find a violation of Title IX, but they chose to do so, straining and stretching, warping and twisting alleged facts into the Glaros Report. In so doing, the investigators at the Office of Compliance and Integrity appear to have been so determined to find a lack of the former that they sacrificed the latter. Even though a due diligence review of the Glaros Report would have revealed its many flaws, the current administration seems to have been almost eager to accept it as the gospel truth, and quickly used it as justification for use of the nuclear option – firing the best band director in the country.
The ancient Greek philosopher Socrates was subjected by the Athenians to a sham trail after which he was sentenced to death. The Athenians only forced Socrates to drink hemlock. They did not drop a nuclear bomb on his house and wipe out him, his family and friends, and a large chunk of Athens. But that is in essence what the current administration has done with the Band. The Band, which used to have a spotless reputation and was old and unquestionably the best in the country under Jon Waters, has been badly damaged, perhaps irreparably, and its survival is at stake. The thousands alumni of the Band, including myself, have been libeled as sexual deviants. And all by an, at the very least, incompetent piece of investigation and writing in the Glaros Report.
It is difficult to see how any of the current administration’s actions here have been in the best interests of the University or even could have been contemplated as in the best interests of the University. Nothing – not the facts of the case, even as presented in the shoddy Glaros Report; not Title IX; not even and especially simple notions of justice and fairness – required the use of the Glaros Report to smear Waters and the Band.
So why was the Glaros Report handled this way? We have asked ourselves that, and there is no easy or pleasant answer. It does not make sense. One does not destroy a precious, beloved asset over a century in the making except through incompetence or malice. There is that choice again. It is not a pleasant choice, but one with which the current administration has presented us.
Incompetence or malice? We should not be asking ourselves this question. We should not be wondering about ulterior motives. And yet we are. The thousands of Band alumni, the tens of thousands of Ohio State alumni who have supported us over the years, should trust the current administration – with the president, the trustees, the deans, the provosts, the staff, to protect and act in the best interests of The Ohio State University.
That was clearly not done here. The current administration cannot even make a case that it was done here, and the more and more information comes out about the shoddy Glaros Report – especially the interviewed witnesses who denounce it as inaccurate – the more and more the report looks less like an investigation and more like an assassination. And when we dare to question it, the current administration treats us with arrogance and contempt.
The current administration’s actions here have broken the bond of trust that should exist between it and the alumni and students of The Ohio State University. At this point, nothing said by the current administration or those chosen by it, including Betty Montgomery, can be trusted as be an accurate representation of the facts about this affair. The only way to begin to rebuild that trust is for the current administration to admit its mistake and for the trustees to earn the word “trust” in their titles by retracting the Glaros Report and reinstating Jon Waters as band director.
Anything less and that broken trust will become irreparable.
Please provide me with confirmation that you received my letter. I request feedback from the Board of Trustees regarding this matter.
Jeffrey R. Cox, Esq.Attorney-at-law licensed in Indiana and California
Author, Rising Sun Falling Skies: The Disastrous Java Sea Campaign of World War II.
JD 2003 – Indiana University-Indianapolis McKinney School of Law
BA National Security Policy Studies 1994 – The Ohio State University
The Ohio State University Marching Band (C-Row) – 1989-1993
cc: Chris Glaros
The Ohio State UniversityAssistant Vice President of Compliance Operations and Investigations
1534 North High Street
Columbus, OH 43201
Archie GriffinATTN: Sherri Moore
Longaberger Alumni House
2200 Olentangy River Road
Columbus, OH 43210
Betty Montgomery6530 West Campus Oval
New Albany, Ohio 43054
David AxelrodHuntington Center
41 South High Street
Columbus, Ohio 43215