Obama and Gates: Two Unlikely "Race Men"

A week ago, the news circuit was ablaze over the arrest of Harvard University Professor Henry Louis Gates, a black man who teaches in the school's African and African American Studies department. Cambridge police arrested Gates after a neighbor called 911 to report a possible, though uncertain, burglary at his home. It turns out that Gates had to enter his home forcibly due to a malfunctioning lock on his front door. Despite identifying himself as the lawful occupant of the house, police initially did not believe him and subjected him to great scrutiny. After Gates protested his treatment, Officer James Crowley arrested him for "disorderly conduct."

Crowley said that he acted responsibly because the 911 caller said a "black man" was attempting to break into the home and that he only arrested Gates after he started behaving badly. The 911 tape, however, does not comport with the officer's description, and the caller has come forward to deny making a racial identification.

The District Attorney subsequently dropped the charge against Gates "in the interest of justice." Also, in a joint statement, the city and police department described the incident as "regrettable and unfortunate."

Two Unlikely Race Men
The arrest of Gates has led to a national conversation about race. Many commentators believe that race shaped the outcome of the scenario and that the arrest was another example of racial profiling. Others, however, dismissed this narrative and argued that police did nothing wrong when they responded to the 911 call or when they arrested Gates.

Upon reading some of the early articles regarding Gates' arrest, I felt that much of the analysis suggested that Gates -- an elite professor -- sustained an even greater injury from alleged racial profiling than poor and middle-class blacks who could inevitably detail numerous encounters they have experienced with police officers. I have discussed several of my own encounters with colleagues since the Gates incident. Being a law professor, however, does not make those moments worse. In fact, I probably escaped a lot of injury because I am both a lawyer and professor.

Gates
Although the incident has led to commentary regarding race, Gates is an unlikely symbol of racial protest. While Gates teaches in a race studies program, his work has focused much more on examining the historical aspects of black art, rather than examining issues of racial inequality and injustice (Note: I recognize that black artists have often focused on racial inequality). Gates shies away from controversial and socially damning commentary, which undoubtedly makes him attractive to faculty members at the numerous elite institutions where he has taught.

Many black men, most recently Colin Powell, have argued that they have learned to become extraordinarily humble in the presence of police in order to avoid an arrest -- or even worse outcomes. Although I believe that the First Amendment gives all of us the right to harangue cops, the Constitution has failed to prevent many angry cops from engaging in abusive and racially discriminatory behavior. Many whites report that they too submit to cops, but for black men, humility can mean life or death. It does not carry such stark choices for whites.

Obama
During a press conference on health care last week, a reporter asked Obama to comment on the arrest of Gates. In response, Obama said Crowley acted "stupidly." While I would not have chosen that word to describe Crowley's behavior (I can never imagine a situation requiring that I turn "stupid" into an adverb), the president's conclusion was not beyond the realm of reasonable commentary.

In fact, Obama was somewhat guarded, given the circumstances. The police arrested Gates after responding to a call that suggested someone could have been burglarizing his own home. Gates was arrested for protesting his treatment by the cops too zealously. But "protesting" police behavior is not a crime. Indeed, the Massachusetts Supreme Judicial Court has placed severe limits on the state's ability to enforce the "disorderly conduct" statute, given the First Amendment issues it implicates. Furthermore, the city and police department described the arrest as "regrettable and unfortunate," which suggests that it was not a reasonable outcome under the circumstances. Finally, the District Attorney sought dismissal of the charge "in the interest of justice." Given these reactions and the First Amendment, one could reasonably (even if inartfully) argue that Crowley acted "stupidly."

When Obama initially discussed the Gates incident, he did not accuse Crowley of racial motivation. Instead, he spoke about race in an abstract manner, saying that "racial profiling" continues and that he had sponsored legislation in Illinois to stop the practice. Obama's tepid racial analysis mirrors his general strategy on race. President Obama has sought to invoke race in ways that are ceremonial (e.g., celebrating MLK's birthday) or abstract (saying "we" all need to do better on race or that "racial profiling" still occurs). At the same time, Obama seeks to remain very distant from the thorny subject of racial politics (such as affirmative action) which causes discomfort among many whites.

During the presidential campaign, many of Obama's supporters and members of the news media (who were often indistinguishable), described him as a "post-racial" candidate. That description, however, ignores that subtle ways in which Obama used race to his advantage (e.g., emphasizing the "historic" nature of his campaign and downplaying race to comfort whites).

Despite his racial tightrope walk, Obama's comments regarding the Gates incident sparked controversy. Some commentators argued that he should not have placed blame with Crowley, arguing that Gates could have overreacted to the situation, causing his arrest. Some dismissed the relevance of race altogether. Others criticized Obama even as they openly praised racial profiling as a law enforcement tool.

Faced with criticism (which he seems to hate and want to avoid like the plague) on an issue (race) that he wants to ignore whenever possible, Obama backpedaled -- to such a degree that he invited both Gates and Crowley to the White House for a beer. Both individuals accepted, and tonight, the three men will come together for some hops.

Jake Tapper of ABC News has posted some interesting information on his blog that makes the presidential happy hour even more farcical than it already is: "The president, we are told, will be drinking Bud Light, Crowley will have Blue Moon, and Gates will have Red Stripe -- Red Light and Blue." Bleh.

My Take
Gates absolutely had the right to protest the incident, and I believe that race probably factored into his arrest. Once Crowley (finally) accepted the fact that Gates was not a burglar, he should have simply left the scene. But the "uppity" Gates harangued him, which by the officer's own admission led to the arrest. That race could have influenced the officer's conduct does not make him an awful or incompetent individual. Instead, it demonstrates the subtle or unconscious operation of race, even among generally well meaning individuals.

Gender probably mattered as well. The battle between two men - one black, the other white -- over "public dignity" and power is a classic one.

Regardless of whether race was a factor, I agree that the officer acted inappropriately in arresting Gates (so ignore the race angle if it bothers you). The First Amendment permits all of us to criticize cops, especially on political issues such as racial justice. Despite this fact, the President will chug a brew with both Gates and Crowley in order to make everyone "get along" after he almost talked about race. Perhaps the trio will exchange a few manly slaps on each others' arms and share "high fives" as they laugh the regrettable and unfortunate incident right out of their hair.

Obama will likely escape the messy racial thicket that he has spent a lot of time and energy avoiding. And while his backpedaling on this issue might help him politically, it does not give serious treatment to the important issue of race in our society. Consequently, the president's behavior is regrettable and unfortunate.

Officer in Gates Arrest Cannot Be a Racist: He Gave "Mouth-to-Mouth" to a Black Man

The Boston Herald has published an article that implies James Crowley, the officer in the center of controversy over the arrest of Professor Henry Louis Gates, cannot be a racist because he gave "mouth-to-mouth resuscitation" to deceased Celtics basketball star Reggie Lewis in a failed effort to save his life. I assume for the sake of argument that Gates's arrest was unrelated to racism. The fact that Crowley tried to save one black man's life, however, does not negate the possibility that he is a racist.

Discrimination and Complexity
Racism, like all other "isms," operates with a level of complexity that the Boston Herald article fails to appreciate. During Jim Crow, whites in the South flocked to watch black artists perform -- even though local laws would not permit them to dine at the same restaurants, stay in the hotels or to marry. During slavery, many white male slave owners did more than place their lips on black women, and they fathered many children, whom they subsequently enslaved. Similarly, one of the officers who was involved in the violent act of ramming a plunger in the anus of Abner Louima denied that he was a racist because he was in a relationship with a black woman. And one of the oldest expressions, "I don't think of you as black" reveals the psychology of a white person who normally "thinks of blacks as blacks" but who creates exceptions to this rule.

The same complicated behavior exists with respect to other forms of discrimination. Virulently sexist men claim to "love" their wives, mothers, sisters, and daughters. Also, some of the most homophobic people learn to embrace and defend their gay or lesbian children. This behavior undermines the central theme of the Boston Herald article. Regardless of whether the officer's actions were motivated by race, this article does nothing to resolve the question.

Note: Even the conservatives on the Supreme Court have not obliterated a longstanding doctrine in civil rights cases which establishes that an employer cannot disprove an allegation of discrimination by arguing that it treated other persons in the same class fairly.