Gates, as you may recall, was arrested in his own house after having presented his Harvard identification and, subsequently, losing his temper with Sergeant James Crowley. The conclusion reached by the panel of investigators? Both men were responsible for the incident. They feared each other, the report reasons, and acted accordingly. Gates shouted, Crowley locked him up. Because of their mutual fear, the commissioners reason, the two men shared responsibility for the incident because each might have taken a step back at a crucial moment. (Note to historians: this could be a real methodological breakthrough, as we sift through the evidence of a variety of people whose oppression and genocide might have been avoided if only they had kept their mouths shut and not frightened their colonizers so badly.)
My esteemed colleague DeVega rightly points to the report’s implication that Gates’ main error was to be in unlawful possession of negritude of the uppity variety. Charles Ogletree, a Harvard colleague and Gates’ attorney, noted that while “the report is important and timely” and will help move the community forward, the notion that “both Gates and Crowley had an equal opportunity to deescalate the situation is just breathtaking and unbelievable.” See? This is the difference between lawyers and English professors. English professors start yelling; lawyers say something nice to get your attention, and when you are listening, say that the other side is full of $hit.
As Ogletree points out, only Crowley had the power to make an arrest: Gates did not, nor was it within his power to compel the officer to leave his house or to require an explanation for why Crowley invaded it in the first place. At the time of Gates’ arrest, opinions abounded about his role in this confrontation: that he had lived so long in the university bubble that he had lost touch with the deference to police authority required of all African-American people; that all people, black or white, who express anger at our friends the police deserve what they get; and that Gates ought to have been grateful that Crowley was there to protect his property, even though he was arrested as a result. Even President Obama, by calling the “beer summit,” where all three of them sat down in the spirit of shared masculinity (underlining graphically that “racism is over” because the least socially privileged ma at the table was Crowley, the White Guy) tried to divert us from the real issue here.
And what was that issue? Why the valorization of state power, of course, and the pervasive propaganda that nothing in post-civil rights Amerika is racist anymore. What looks like racism is just collateral damage accidentally inflicted on people of color as the police state keeps the rest of “us” safe from — whatever.
That’s right. If, for example, of the 8,000 peopl
e on the “no fly list” there are some who are there by mistake
and cannot return to the United States, that’s too bad, but wouldn’t you rather have one or two or 1000 people falsely imprisoned, tortured and exiled
to prevent another 9/11? Sure you would. Particularly when it isn’t you
It’s why we all stand there passively while TSA people treat us rudely, shout at us when we move too close to a bag that they are searching, and grab their coworkers to point and giggle at the private items we have in our luggage. Similarly, our current desire to yield all moral authority to the state has many Americans’ fully persuaded that Arizona’s new anti-immigrant law
is aimed only at people without legal residence documents, not Latino/as — even though Canadians, Irish and Russians don’t seem to be rushing to the the Sunshine State to take below minimum wage jobs. If you are arrested and deported
because you look Latino/a and have no documents handy, well then stupid you, because you had the power to choose to carry documents. If you die while being deported
, it isn’t racism; just a misunderstanding
you could have avoided by not coming to the United States in the first place or by carrying documents that prove your family lived in Arizona in 1848.
The point that is occluded by our national zeal to be endlessly cooperative with law enforcement is that the law, even when written as a neutral instrument, inflicts itself unevenly because police spend their time actively looking for criminals, not doing good deeds. White people tend not to appreciate this fully because they (and their family members) are usually not the ones dressed in the Sing-Sing bracelets, being tasered to death at the Mexican border or trying to find a place to stay in Cairo for the indefinite future. More importantly, however, policemen are the instrument of the law, not citizens, and it was Officer Crowley alone who was responsible for acting correctly during the course of a “misunderstanding” about whether that elderly black man needed to be taught a good lesson about respecting authority.
But there is a second point about racism and the law that the Cambridge report misses. While racism in the application of the law is an important way to discuss state power, in a few decades Americans seem to have forgotten a lot of history: racism became so powerful in the United States because of the law and because the military and the police have historically enforced racism even when no laws are broken. In other words, had racism simply been a matter of personal ignorance and social attitudes — as people choose to believe nowadays — it would have had less impact on history than it had. The law was frequently enforced informally by whites who exercised various forms of violence on people of color, but when said whites were challenged as to their right to control or exclude people of color, they could always point to the laws that ratified the racial order.
Theoretically, of course, the law is race neutral. But you can see, by the following analogy, how discrimination written into the law produces aggrieved attitudes among those who the laws privileges. According to the New York Times
, when repeatedly questioned about her initial attempt to bar military recruiters from Harvard’s career counseling center (Harvard’s nondiscrimination po
licy includes GLBTQ people, and is therefore in conflict with the military’s Don’t Ask, Don’t Tell policy),
Ms. Kagan repeated that she found the ban “unwise and unjust,” and told the committee that she had been trying to reconcile Harvard’s own antidiscrimination policy with a provision known as the Solomon Amendment, which requires universities that receive federal financing to give full access to the military. Senator Jeff Sessions, Republican of Alabama, helped write the amendment, and made clear his displeasure with Ms. Kagan.
“You were punishing the military,” Mr. Sessions said at one point. Later, outside the hearing room, he came close to accusing Ms. Kagan of lying, calling her “not rigorously accurate” in her explanation.
Two things seem immediately obvious to me here. In a truly interesting hearing, someone might have asked Kagan the legal question: are there not two federal laws in conflict here (e.g., that institutions that accept federal funds must allow military recruiters on campus and that institutions, legally, must enforce their own rules as they are written, including those barring discrimination) and how would she rule if such a case came before her?
The second — to come back to Mr. Gates — is this: under what conditions does the Dean of the Harvard Law School have the power to punish the military, even if s/he wanted to? Is withholding space on the Harvard campus tantamount to banning military employment for Harvard graduates, or even an actual humiliation to the federal government? Even if it were, would such a “punishment” be in any way similar to the power the government has to damage research at Harvard by withdrawing grant and scholarship money? Or humiliate GLBTQ soldiers by drumming them out of the armed services?
And is not the government’s insistence that institutions defer to them and abandon their own principles an act of far greater, and utterly needless, vanity?