John Blomster: Welcome to DISCOVERY, a University of Washington School of Law podcast where we discuss today's biggest legal topics with the law school’s distinguished guests from around the world. I'm John Blomster. And today we're speaking with Professor Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice at Seattle University School of Law. Professor Chon is a renowned scholar and author who has written extensively on issues at the intersection of race and law. And she is also coauthor of the newest edition of the book “Race, Rights and National Security: Law and the Japanese American Incarceration.” She recently joined the law school as part of our 1L Introduction to Perspectives on the Law class for a presentation on Japanese American incarceration. Today, we'll be talking about how the fight for social justice that followed informs the work being done today, in pursuit of racial equality. We're really looking forward to this. Thank you very much, Professor Chon for taking the time.
Margaret Chon: Thank you so much for inviting me.
JB: So, the Japanese American incarceration during World War II is a black eye on the history of the United States, with more than 100,000 people, two thirds of whom were American citizens forced into internment camps. In the four decades that followed, activists led what was ultimately a successful campaign for reparations for those who had been incarcerated. And the story is a truly remarkable one. And so just starting at the beginning, how did the reparations movement originate?
MC: Actually, the national movement for reparations was jumpstarted here in Seattle by a small group of Nisei, or second-generation Japanese Americans who had been born in Seattle, or sometimes in the camps, the incarceration camps. It's a pretty amazing story, which is told well in a book by [Robert] Shimabukuro, “The Campaign for Japanese American Redress.” So, he interviewed a number of the activists and one of the stories that sticks in my mind from having read the book quite a while ago is that the original activists were not lawyers, but rather engineers at Boeing who went to lawyers, and were initially told that they didn't have any legal grounds for any challenges to what had happened.
Eventually, though, through community organizing the Campaign for Redress and Reparations, as it was called, emerged onto a national stage, and I was a graduate student and a law student in the first part of the 1980s studying at the University of Michigan. One of my friends at the time, [K.] Scott Wong was a history grads student, who was interested in teaching a course together with me on Asian American Studies. We went to the chair of the program in American culture and that chair agreed that we could pilot this course, which to my knowledge was the first Asian American Studies Ethnic studies course offered at Michigan. Scott is still a friend of mine. He's a professor at Williams College about to retire. And we co-taught the class with Tsiwen Law, another friend from grad school who has done a lot of racial justice work since then in the Philadelphia area. But in any case at that time the campaign for redress was still underway, it was still emerging. And the legal fights were still not concluded. So, we used flyers for the Day of Remembrance, as part of our curriculum. And the Day of Remembrance for Japanese Americans is February 19, which is the day that President Franklin Delano Roosevelt signed Executive Order 9066. This day was turned into one of the annual organizing events and tools by community activists to raise awareness in the community.
JB: So, throughout the 40 years leading up to that, what were the most important factors that contributed to Asian Americans’ understanding of social injustice during this time.
MC: I think it's so important to understand the crucial groundwork laid earlier by Black Americans in the civil rights movement. The Japanese American movement for reparations would never have been possible, without the greater political accountability for racial justice demanded by the earlier movement by Black Americans. And since we're talking together at the beginning of Black History Month, I really want to underscore how courageous many of those earlier Black Americans were, that this is part of their legacy. I think this should be mentioned every single time the Japanese American incarceration is discussed.
JB: Another incredibly important group, the unsung heroes, as you call them, but many of the Japanese women who play these foundational roles, but whose work may not be as widely known or celebrated, and this is never truer than in the case of Mitsuye Endo. Who was she? What was her case? And why was it so central to the reparations movement?
MC: When we discuss World War II challenges to the Japanese American incarceration we often mention Mitsuye as kind of a footnote. But she was actually the only litigant to bring a successful action against the incarceration through the vehicle of a petition for writ of habeas corpus, habeas corpus petition, which is one of the ancient writs with its beginnings back in the 12th century. It's related to the Magna Carta. And basically, it's a petition to challenge a wrongful detainment, and is brought now, for example, by prisoners challenging their convictions after the appeals process has run. So, because all of these people were detained for over three years, he was able to bring this type of action.
At the time, she was a 22-year old working for the Department of Motor Vehicles in Sacramento, California when Pearl Harbor happened and eventually she was incarcerated along with her family in Tule Lake, which is an Oregon, and that, by the way, was one of the most notorious of the various incarceration camps, because it eventually became the place where outspoken detainees were sent.
The ACLU in San Francisco was looking for someone to be the petitioner in the habeas corpus action, and she was chosen because she had never visited Japan. This is, I'm reading now according from her obituary in the New York Times, “she had never visited Japan, had attended a Sacramento public school and was Protestant. To top it off, her brother had served in the army.” So, on paper, she was perfect. Eventually, the Supreme Court decided this habeas petition, granted it and that paved the way for the release of all the detainees in all of the camps.
It was always curious to me that her successful petition was treated as a footnote rather than on the same footing as the other Japanese incarceration cases. But it's also true that she didn't want the limelight and granted only one interview in her lifetime. Nonetheless, in that case, Ex parte Mitsuye Endo, the Court unanimously ruled on December 18, 1944, that the government could not detain citizens who were loyal to the US. When we were working on this book, the new edition of the book, my research assistant, Jenny Wu, gathered more information about Endo because there was so little with the idea that we would supplement the book and maybe even create a Wikipedia page. But lo and behold, as we were working on this in 2019, The New York Times did publish an obituary on her as part of its Overlooked No More series. And then a Wikipedia page appeared. And the obituary notice that Ex parte Endo has been cited by the Supreme Court in particular in in a recent case, Hamdi vs. Rumsfeld, which was about whether enemy combatants could challenge the conditions of their detainment based on due process and the Supreme Court found, yes, they could.
JB: It really is an incredible story. And again, as you mentioned, she is just one of many women who really were at the forefront, and who made an incredible impact in fighting for this justice. I mean, just in your opinion, why do you think that a lot of these stories are, as you say, footnotes, especially someone whose case was what led to the release for thousands and thousands of people from internment camps?
MC: Yeah, I think that that might be related to a term called intersectionality, which was first coined by a law professor Kimberly Crenshaw in an early article, critical race theory article, which addressed the double bind that Black women often find themselves in. So, Black women are doubly oppressed in a sense by both being both women and Black. So, the intersection of gender and race is what she wrote about, and it poses additional difficulties and challenges for the legal system, but also for society as a whole. In the legal system, for example, in employment discrimination cases, how should courts focus on racialized gender discrimination? So, for example, as an Asian American female, I might not be seen as having the qualities necessary to be a manager. And that's a type of intersectionality that's very different than what might be experienced by a white woman or an Asian American man, it's come to mean, this term intersectionality, has come to mean more broadly, the specific kinds of racial harms that are experienced by anyone who might be members of more than one social category that is sort of a minority category or a less powerful category, whether that's race, gender, religion, nationality, indigeneity, sexual orientation, etc, etc.
So, a story like Mitsuye Endo’s story might not be part of our dominant narratives for understanding racial justice struggles because women of color, especially if they're young, tend not to be viewed as warriors, but they absolutely can be and are and they should get there do.
JB: Intersectionality is one of two major concepts that you point to as what you call the oxygen necessary to fuel a successful social justice movement. So, we talked about intersectionality but the other big concept is multiracial coalitions. Can you explain what you mean by that, what multiracial coalitions are and why it's so important to a successful social justice movement?
MC: Yeah, so I think this circles back to the point I made earlier, which is that Asian American consciousness of racial injustice happened largely because of the prior racial justice groundwork laid by African American communities. And that legacy is often not mentioned, but it's also sort of invisible, the coalitions that did happen. So, for example, another woman from California, Yuri Kochiyama became an activist. She had been detained in the camps, and she then moved to New York, lived in Harlem, and was a community activist who became friends with Malcolm X, and she was there when he died. But I think that there was some groundwork that civil rights movement leaders made that influenced subsequent social movements such as the Japanese American quest for reparations. And there are two strategies that they use that come to mind. One is civil disobedience. Just this week, The Washington Post, I think, probably again, because of the Black History Month, profiled a 16-year old Audrey Nell Edwards, who was arrested with other teenagers in Florida in 1963 for trying to integrate a lunch counter. And she ended up being detained for the entire summer in a very scary place where she obviously just did not have any sort of recourse to legal aid or anything. And Martin Luther King knew about her, knew about her courageous stance and met with her once she was released finally. She's not a household name, Audrey Nell Edwards, I'd never heard of her. But others of course, such as Rosa Parks did become synonymous with the struggle for civil rights. And I think many of the Nisei, the second generation Japanese Americans who witnessed these protests, which were peaceful, but deliberate, were influenced to view their own communities’ history through the light of this other struggle.
The other thing I think is a legacy of the African American quest for racial justice is the deliberate use of the legal system to fight against racial injustice. But I think that Asian Americans, again, are often stereotyped as passive, perhaps because of the cultural styles that particular East Asian countries like Korea and Japan, which are so different from the rugged individualism here. But while there's nothing analogous to the NAACP Legal Defense Fund in Asian American communities, early Asian immigrant communities were very well aware of the discrimination they faced, even as early as the late 19th century. And they worked through the legal system to fight against injustice. So, I have different examples if you're interested, that we could talk about.
JB: Absolutely.
MC: Good, good. But before World War II, you know, again, the African American community that through the Legal Defense Fund did enormous work to oppose things like school segregation, and anti-miscegenation laws, which were also laws that affected Asian Americans. And we were then much smaller and still are a much smaller minority than Black Americans. And after World War II, many Nisei and other Asian Americans who came of age and went to college or even law school during or after the Civil Rights Movement, were deeply affected by what they saw happening with Black American community struggles for racial justice. I know I was definitely among that group of then young Asian Americans. And that's why I do this work, even though my primary area of scholarship actually is intellectual property, not race.
JB: So, bringing the conversation into today's fight for racial justice, what are the parallels between the intersectionality and multiracial coalitions and the other groundwork laid by these past movements? Whether it's civil rights movement, whether it's the redress movement. How do these concepts apply to today?
MC: So, many in the Japanese American community, I've observed, understand that they have an obligation to pay it forward. And some have been very active in the reparations efforts by African American communities, which have been going on for decades, as well as legal challenges too. For example, the recent Muslim travel ban brought by our attorney general, as well as those in other states such as Hawaii. And so there are lawyers, including law professors [Roberg Chang and Lorraine Bannai], Seattle University's Korematsu Center [for Law and Equality] who've been involved in challenging the constitutionality of those travel bans. And so these are concrete efforts today, to connect to the social justice struggles of other groups, and to challenge the exceptionalism of the Japanese American reparations success story, I guess. I think that sort of in a more nuanced way, and perhaps more ambiguous, the case of Asian Americans is unique, we're not Black, we're not white, we are still in this sort of racial hierarchy somewhere. And we've had to grapple with the albatross of the model minority stereotype, among other things, which pits us as the so-called good minority against other minorities. And that's been a huge challenge to address the various misunderstandings between us and other groups. So, that's definitely what led to the destruction of large swaths of Korea Town in the aftermath of the Rodney King verdict.
And I think it's important to note that not all Asian Americans are successful. In fact, many are struggling because of the overall economic system, which is quite harsh and brutal towards many minority communities, as well as white communities. I think that a lot of Asian immigrants often hope and believe that the United States is a meritocracy. But there's a lot of evidence to suggest otherwise. I think that there are incredible barriers to human flourishing and basic well-being in this particular society, which I think is structured on a winner take all type of basis. And it affects all working people, whether white or non-white. So, I think there's a tremendous amount of education and bridge building to be done across and within different communities of color, along with their white allies.
JB: And so finally, why is it so important for law students to study this kind of activism, to study what makes social movements successful and to study why going outside the legal system, but with that framework in mind, why activism is so important to advancing the legal system, even though it's not necessarily through that system?
MC: So, racial justice activism will not result in a result in an outcome tomorrow. It's a decades-long, centuries-long struggle, where generations have to pass the baton, sort of like a relay race. And so it's important to understand that even though there there will be this sort of new generation of folks who will push things forward, including your generation.
It's built upon the prior efforts of others, some of whom may not be known today, but their efforts have been very, very important. You know, again, going back to the early Asian immigrant communities on the west coast, I remember being so excited in law school, probably for the first time when I came across Yick Wo v. Hopkins, which is a case that was decided in the 1800s by the Supreme Court. And it was brought by the Chinese community to protest discriminatory laundry laws. And it actually went all the way up to the Supreme Court, and they won. So, it was an early win for racial justice advocates—we would call them that now, I'm sure they wouldn't call them that themselves that then—that paved the way for later constitutional wins by other groups. And so, again, law builds on precedent, but I think racial justice struggles build on earlier struggles of other groups. And its, you know, a more pessimistic view of racial equality in the United States would say, well, we're, it's normal. It's just this is the way it is, and racism is permanent. But I do think that we can make dents in that and we can make progress through the understanding that it's not going to end with our generation, it's probably, maybe it will never end. But it's important to try to make things better for people who come after us.
JB: Professor Margaret Chon is the Donald and Lynda Horowitz Professor for the Pursuit of Justice at Seattle University School of Law. Among her many writings on race and law, as well as intellectual property, of course, Professor Chon is coauthor of the new addition of “Race, Rights and National Security: Law and the Japanese American Incarceration.” You can find links to the book and more of her work over on our podcast page at law.uw.edu.
Professor Chon, thank you so much for joining us. This was a lot of fun.
MC: Thank you so much, John. I really enjoyed it.
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