FILE - In this Sept. 7, 2013 file photo, Ohio State University marching band director Jonathan Waters leads the band in "Carmen Ohio" following a NCAA football game against San Diego State at Ohio Stadium in Columbus, Ohio. A federal judge is set to weigh arguments in a civil-rights lawsuit filed by the fired director of the Ohio State University marching band. The school will ask at Friday, April 10, 2015 hearing that Judge James Graham dismiss Waters' complaint. Waters has sued for reinstatement, accusing the university, President Michael Drake and a provost of discriminating against him by disciplining him differently than a female employee and denying him due process. (AP Photo/The Columbus Dispatch, Adam Cairns, File)
COLUMBUS, Ohio — A federal judge rigorously questioned both sides in fired Ohio State University band director Jonathan Waters' civil-rights lawsuit on Friday ahead of deciding whether the case should proceed.
Judge James Graham said he'll issue a written decision in the coming days on whether to dismiss the case.
Waters, hired as director in 2012, was known for revolutionizing the band's halftime shows. The morphing and dancing creations he designed on iPads drew hundreds of thousands of views on YouTube and landed "The Best Damn Band in the Land" in an Apple commercial.
He was terminated in July after an internal investigation said he turned a blind eye to a "sexualized culture" of raunchy, profane and suggestive band traditions and mishandled sexual discrimination allegations.
Waters' lawsuit accuses the university, President Michael Drake and a provost discriminated against him by denying him due process and disciplining him differently than a female employee.
The judge expressed skepticism that certain university actions stigmatized Waters and "shocked the conscience" of the public adequately to constitute constitutional due process violations.
"What's the standard for shocking the conscience?" Graham asked Waters attorney David Axelrod. "It sounds like a very nebulous concept. What shocks one person's conscience may not shock some other person's. That doesn't seem to be the kind of rule that courts can enforce."
Axelrod argued the university's report was false and "branded Mr. Waters as immoral." He also contended Ohio State's decision to set up a website displaying the full investigative report (flagged as containing "explicit content") and a video message from Drake took it over the top.
"He (Drake) made a YouTube that was disseminated across the United States describing the culture of the marching band to which Mr. Waters was inextricably linked," Axelrod told the judge.
Axelrod said Waters' good name was maligned and argued that his client is entitled to a name-clearing hearing far more extensive than what's been offered by the university.
Ohio State attorney Mike Carpenter argued that university officials gave ample due process to Waters, who worked under an at-will contract.
"He was given so many opportunities that he actually complained he was being interviewed and questioned too much," Carpenter said. "That's not egregious conduct. That's a responsible university conducting itself for the protection of the students who go to school and march in this band."
Pushing back further, Carpenter said, "We are not going to apologize and we are certainly not going to agree that's egregious or shocks anybody's conscience. Shocking the conscience is not Mr. Waters being shocked he was terminated."
Among other legal questions, the judge must decide whether Waters enjoyed a faculty-like relationship with the university that led to a reasonable expectation that his firing would have been handled differently. Waters' attorneys cite the case of a female cheerleading coach who was not fired after similar revelations, but given a second chance.
The judge pushed back at university lawyers to address Waters' claims that the school needed to fire a male to show federal Title IX investigators that the school took sexual discrimination seriously. A U.S. Department of Education inquiry was settled shortly after the firing.
University attorneys argue that the power structure would have needed to be controlled by women for Waters to make such a gender claim.
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