The arrest of Henry Louis Gates Jr.

The law, lawyers, and the court.
July 23 2009 3:31 PM

The Depressing Cycle of Racial Accusation

The arrest of Henry Louis Gates Jr. is about neither racial profiling nor playing the race card.

Henry Louis Gates, Jr., Chair of Afro-American Studies at Harvard University.
Henry Louis Gates Jr.

As many of us learned early this week, Henry Louis Gates Jr., the eminent Harvard scholar of African-American culture, was arrested a week ago outside his own home in Cambridge, Mass. Gates had returned home after an overseas trip and found his front door was jammed. He forced it open with the help of his driver. One of his neighbors saw the men forcing the door and called the police to report a burglary. When the police arrived and demanded that Gates come outside (or "asked" depending on which account of events you believe), Gates refused and a confrontation ensued, which ended in Gates being placed under arrest for disorderly conduct.

Reactions were swift and predictable: For liberal civil rights activists, Gates was a victim of racial profiling. For law-and-order conservatives, Gates is a pampered black elitist who played the race card against a hardworking cop who was just trying to do his job (and said today that he won't apologize, as Gates has asked). Neither of these reactions offers much insight into Gates' arrest or how we can prevent similar episodes in the future. Instead, both play into the all-too-familiar pattern of every racial scandal in recent memory: a depressing cycle of racial accusation, denial, and recrimination, in which the arguments all have been made many times before, and everyone knows which side they're on before even hearing the facts.

Last night even the president weighed in, saying police acted "stupidly" by arresting Gates. Strong words, but Obama in his typically diplomatic style was careful to say he couldn't tell what role race played in the incident. The president got it right: There's no plausible justification for the arrest. It was worse than stupid—it was abusive. And that raises the suspicion that it was racially motivated. But there's really no evidence that the police officer involved was a racist rather than a bully with a badge or a decent cop who made a bad call in the heat of the moment.

Let's take the charge of racial profiling first. Strictly speaking, there was no profiling here: Sgt. James Crowley did not assume that professor Gates was a burglar because he fit some generic stereotype of a black criminal; he was responding to a 911 call. But racial profiling has become a sort of catchall term: If the police consider race in any way, it's profiling. The claim here is that once the police arrived, they treated Gates differently than they would have treated a white person in the same situation. It's clear that Sgt. Crowley, who arrived at Gates' home last Thursday, treated Gates as a suspect: He demanded that Gates step outside, and when Gates said he lived there, the officer demanded identification.

Was this racist? The witness who called 911 said that two black men were breaking into the house, so it wasn't outrageous for Crowley to suspect that the black man he saw inside the house had just broken in. If there was racial profiling, it began with the neighbor who described the burglary suspects in terms of race (or the 911 operator who probably prompted her to do so). But that's a normal part of a suspect description: Like sex, height, and weight, race is a convenient way to identify a person. Asking police to ignore race in a description of a specific suspect takes colorblindness way too far.

And even racial profiling in the sense of using race as a part of a generic composite of a typical criminal isn't necessarily racist. It's a tragic fact that blacks as a group commit a disproportionate number of certain types of crime. The trouble is that racial profiling—even if it's based on accurate generalizations—imposes a disproportionate share of the costs of law enforcement on innocent blacks, like professor Gates. Let's face it: It's hard to imagine that police would have presumed that a middle-aged white man who walks with a cane was a burglar.

Still, the larger problem wasn't that Crowley considered Gates' race in assessing whether he might be a burglar. It's what Crowley did after learning that Gates was the lawful occupant of the house. And this is where the idea that Crowley was a cop just trying to do his job and Gates a spoiled black Brahmin playing the race card doesn't wash. The details are contested (and of course, the details are everything). According to the police report, Sgt. Crowley "asked" Gates to step outside and he refused. The report states that after Gates produced his identification, Crowley left and that Gates followed Crowley outside to berate him for racism. But Gates says he asked for Crowley's name and badge number, as is his right under Massachusetts law, and Crowley refused to provide them. Then Gates followed the officer outside and at some point said (or yelled) "Is this how you treat a black man in America"? Everyone agrees that this is when Crowley arrested Gates for "disorderly conduct."

AP video: Obama Weighs In on Gates Incident

I know Gates and find it very hard to imagine him engaged in "disorderly conduct." But many police officers demand more than orderly conduct; they demand submission and deference.  Given the difficult and dangerous jobs they do, they usually deserve it. But it would be naive to imagine that there are no power-hungry bigots wearing the uniform. Anyone, particularly a black person, needs only to encounter one such rogue officer to find himself in serious jeopardy—at that point a few hours in custody is about the best one can hope for. Maybe Gates, who is well-acquainted with the history of American racism, raised his voice in anger or fear. Maybe he even unfairly berated Crowley. But there's no way that the slight, 58-year-old Harvard scholar, with his cane, posed a threat to public order that justified his arrest.

I don't know whether Crowley arrested Gates because he was angry that an uppity black man dared to question him or whether this was just a tense misunderstanding that escalated out of control. What's clear is that neither the overused notion of racial profiling nor the trope of a black malcontent playing the race card gives us any real purchase on this controversy. Gates has said he hopes to use the incident as a teaching moment. But if we are really to learn anything from it, we'll have to look deeper. We need to ask why so many police officers of all races suspect the worst of racial minorities. (I wonder what the black Cambridge police officer pictured in the photo along with Gates after his arrest would say about all of this if he could speak candidly.) Decades of blatant and pervasive racial discrimination, poor urban planning, and failed labor policy have left blacks disproportionately jobless and trapped in poor ghettos across the United States. Faced with few opportunities and few positive role models, a disturbing number of people in those neighborhoods turn to gangs and crime for money, protection, and esteem.

Rather than improve those neighborhoods and help the people who live in them join the prosperous mainstream, we as a society have given police the dirty job of quarantining them.  Frankly, we should expect that a disproportionate number of power-hungry bigots would find such a mandate attractive. And an otherwise decent and fair-minded officer, faced with the day-to-day task of controlling society's most isolated, desperate, and angry population, might develop some ugly racial generalizations and carry them even to plush and leafy neighborhoods such as those surrounding Harvard Yard. Yet when the inevitable racial scandal surfaces we, like Capt. Renault in Casablanca, are shocked, shocked to find racial bias in law enforcement and quick to blame individual police officers, rather than ourselves.

The baseless arrest of one of the nation's most esteemed scholars is wrong and unfortunate, whether racism or simple abuse of authority is to blame. Professor Gates was publicly humiliated and spent several hours confined in a jail cell for, at most, asserting himself against a mistaken policeman. He deserves the apology he has asked for and apparently won't receive. But the larger problem of racial disparity in law enforcement is not caused by individual misconduct, and it will not be solved by apologies extracted under pressure or the threat of litigation. It's a symptom of the way we have chosen to deal with poverty and racial isolation in this very wealthy and supposedly egalitarian society. And it makes all police scapegoats for the failed and callous social policies that we have all chosen or acquiesced to.

Richard Thompson Ford teaches at Stanford Law School and is author of The Race Card: How Bluffing About Bias Makes Race Relations Worse, now available in paperback.