Time will shortly give us a glimpse of the so called “progress” that so many claim to have been made in race relations in the United States, as evidenced by the election of President Obama. Compare two cases of interpretation of “justice” and the rule of law in present day America.
In one case, the question was whether a school system acted unlawfully in requiring the equivalent of a strip search of a young white student who authorities suspected of hiding prescription drugs. The court decided that the school authorities acted outside the law by treating the student inappropriately when they were not faced with any serious threat and they lacked sufficient evidence to suggest that the student was, in fact, in possession of any dangerous substance. The situation reflected a routine school policy enforcement process that got out of hand. Although the authorities had the right to maintain the policy against drug possession, the manner in which they enforced that policy was subject to constraints relating to the respectful treatment of a student suspect. Without sufficient justification and probable cause to believe that the student was violating the law or school policy, the school was not entitled to humiliate the young student by subjecting her to a search of her underwear. Moreover, the court suggested that the nature of the alleged violation should inform the nature of the enforcement response. In other words, if the student were suspected of gun possession accompanied by evidence of a threat against other students or staff, harsher treatment may have been justified. But in this case, suspicion of having Tylenol or some similarly innocuous substance did not justify the invasive assault on her person. The student's rights were violated by the humiliating treatment, the court ruled, although there was no force used, no arrest and the search was done by female officials in a private setting.
Now consider the case of Harvard Professor Henry Louis Gates, Jr. Returning home to his Cambridge, MA, house near Harvard Square, Gates found the front door stuck. After he and his driver were unable to open the door, he went around to the back door, unlocked it and went inside to disarm the alarm system and to unlock the front door. He then returned to the front door and again tried to open it forcefully and was successful. Apparently, a neighbor called police to report a break-in and a police officer came to the door to confront Gates. Understandably surprised, Gates first challenged the officer, who would not accept that Gates owned and belonged in the home, and then Gates showed him his Harvard Identification as well as his personal identification, proving that he lived at the house. This should have been the end of the incident, since the alarm system had not gone off and the resident had shown documented proof that he lived there.
In light of recent events at Harvard, including other instances in which Black male professionals have been targeted and detained or questioned by Harvard Security and Cambridge Police, Gates questioned the officer whether the same encounter would be happening if he had been a white professor. In particular, Gates questioned why the officer continued to treat him disrespectfully and with suspicion after having been presented with ample proof and documentation of Gates’ legitimate presence in the house. He demanded of the officer his name and badge number so that he could follow up. The officer refused and Gates was then arrested for “disorderly and tumultuous conduct” and placed in handcuffs and taken to jail. In addition to being one of Harvard’s most distinguished professors, Gates needs a cane to get around, so he obviously was not a threat to the officer or the community.
Most of the Harvard professional community hopes that the charges will be dropped and that the matter can be resolved peacefully. Other professors were stunned and disappointed by the treatment that Gates received. The underlying motif here was that a Black man did not belong in the neighborhood and could not possibly be a legitimate resident in a nice home in such a prestigious location. For that reason, the police officer was unwilling to follow what would have been typical protocol for a white citizen, and demanded additional proof that Gates belonged in the house. When questioned about the underlying racism, the officer responded defensively with the use of force to arrest Gates, not for any charge of unlawful entry onto property or breaking and entering, but for questioning the officer's authority.
The test will be whether the obvious racism that was the foundation for the actions of the officer are exposed. We will see whether the police are reprimanded or sanctioned as were the authorities in the student case. In the case of Gates, placing an elderly Black man in chains [an obviously humiliating and culturally insensitive action] and taking him to jail was at least as invasive as the search in the student case. The official justification was even weaker, because the officer had PROOF that there was no crime BEFORE making the arrest. In the student case, the administration still had at least a weak suspicion that the search would have revealed a violation of school policy.
Taking action that impacts some in a racially distinct way requires justification under current precedent. In the case of the white firefighters’ challenge to the New Haven authority's decision to abandon the results of a promotional exam because the results suggested improper race bias, the Court ruled that discriminatory treatment requires solid evidence rather than mental impressions or “belief” on the part of officials. The officer in the Gates incident clearly acted beyond his authority and the law, if this is the standard applied. There was no “evidence” of wrong or wrongdoing other than the racial stereotypical “belief” on the part of the officer that the Black man [regardless of his credentials or accomplishments] was out of place in a prestigious white neighborhood. The community, he thought, had to be protected from the presence of someone of color. At a second level, the officer apparently believed that a Black man, wrongly accused and inappropriately treated, had no right to challenge or question the actions of the officer.
Perhaps a more intelligent or more culturally competent officer would have diffused the situation and would have acknowledged the excessive questioning of Gates’ presence in his home as error. It is likely that such a response would have ended the encounter; Gates [being a teacher] would have felt that the officer had learned something in the encounter and would be unlikely to react as he did in the future. The officer’s response is typical of those who wield the legitimized authority to use force, but who are culturally stunted and perhaps intellectually challenged. The officer instead chose to react defensively and “put the Black man in his place” by arresting him. This case adds to the Black males' suspected crime portfolio experience of "driving while Black" and "shopping while Black" the new level of "entering your own home while Black."
There has been much debate in the selection of Judge Sotomayor as nominee for Supreme Court Justice about racial bias and the rule of law. That her cultural background may make her more sensitive to the context and fair application of the law than a white male judge with no similar exposure to cultural differences got conservatives up in arms and salivating like rabid dogs. Yet clearly a typical white judge with limited cultural competency may fail to see the injustice in the treatment of Gates, where someone with cultural competency would recognize the elements of racism in what transpired. Such competence is critical, whether that competency has been gained through learning and education, or through the inescapable experience of growing up in America as a person of color. Recognition of those elements by a jurist is essential to the administration of true justice and fair application of the rule of law.
Without understanding the reasons for Gates’ challenge to the officer and the impropriety and provocation in the officer’s prior actions, a judge might simply find a charge of disorderly conduct supportable. Authorities felt that the young woman, as a female and a student, deserved less respect and had fewer rights than an adult male would receive. It is a good thing that the court had the sensitivity to recognize that bias and consider it in applying the rule of law. It remains to be seen whether the same cultural competence is applied in the context of racial bias. Without the ability to tie construction of the letter of the law to the real world and real world experiences, including the pervasive cultural nuances that color and motivate the facts to which the law must be applied in American society, there will continue to be a racially divided system of justice in America, one for Blacks and another for Whites.
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