Henry Louis Gates committed a crime. He was arrested for disturbing the peace, but that wasn’t his offense. Gates committed the age-old crime of being uppity. “Uppity adj: putting on airs of superiority: ARROGANT, PRESUMPTUOUS.” In decades past, this offense could get a black man lynched.

The uppity crime is key to understanding how and why race is at the heart of this incident. By all accounts the arresting officer is not a bigot. In fact, it is claimed that he has helped train officers to become more racially and culturally sensitive. So if he is not a racist, what makes the incident racial? The answer: It happened in America.

Like it or not, America has a ton of racial baggage. Universally-held notions of the proper stations in life of the various groups and individuals who comprise the country’s population linger. These notions are not consciously and deliberately acquired. They seep into our consciousness by osmosis.

So on that fateful day as Professor Gates ranted and raved about racist cops in his own house, he did not “disturb the peace” as defined by the Cambridge ordinance, but he very much disturbed the arresting officer’s peace of mind. We all have roles to play – pre-designated stations in life – and for this officer, Gates was not in character. For Gates to scream at an officer of the law and charge racism was just too much. Order needed to be restored. Not public order, but the officer’s subjective sense of social order. Older black men don’t yell at police officers. It just isn’t done. Gates had to be arrested.

But wouldn’t the officer’s reaction have been the same if Gates had been a 58-year-old, 150 pound white man who walks with a cane? No. Most likely, the officer would have chuckled to himself about how much the hypothetical white Gates reminded him of his own cantankerous uncle. It is normal - even expected that older white men will speak their minds.

None of this can be proved. In fact, much of it is not even believed by many in our society. This is frustrating for the many people who call the ACLU of Michigan with complaints of racial profiling that we can often do nothing about because of the proof challenges these cases present. The degree to which these challenges will diminish has much to do with whether we are all prepared to use the Gates incident as a “teachable moment” as President Obama has suggested.

By Mark P. Fancher, Racial Justice Project Staff Attorney

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