Every Feb. 19, we take time to recall this as the day in 1942 that President Franklin D. Roosevelt signed Executive Order 9066, which eventually paved the way for the mass incarceration of nearly 120,000 men, women and children of Japanese descent.
One very important point about EO9066 is that nowhere in the order can you find the word Japanese. This is especially important in the context of 11th-hour proposed revisions by the Justice Department to change the interpretation of Title VI of the 1964 Civil Rights Act. This section of the law bars discrimination on the basis of race, color or national origin by recipients of federal funding and has traditionally recognized the effect of disparate impact in discrimination when obvious intent to discriminate may not be readily discernible.
When we discuss EO9066, we are always very clear that the intent was to discriminate against Japanese and Japanese Americans, and this was borne out in later revelations of uncovered documents, but the argument could be made that the law was based entirely on the intent of preserving national security.
Clearly, the impact was focused on our community, and that is where questions of disparate impact are important to discerning the impact of policy.
We see disparate impact now most often in voting laws today. Efforts to increase voting security invariably lead to reduction in the ability of minority communities to vote. Voter ID laws can serve as a poll tax, requiring voters to obtain an approved ID, which may have certain costs to obtain.
While many people have a driver’s license, this still predicates that someone drives, not always the case for someone living in an urban area with public transit. Gerrymandering and redistricting are another way that minority votes are diluted in value when packed into supermajority urban districts.
Ironically, the impact is more closely aligned with the original Constitutional intent of preserving the superior rights of land and then also slave-owning white men.
While we live under the same laws, how those laws are applied can be very different depending on the color of our skin. The Stanford Open Policing Project last year completed an analysis of 100 million policing traffic stops and confirmed the anecdotal stories of what it means to be driving while Black, that Black people are 20 percent more likely to be involved in a traffic stop. Once that stop happens, it can also end in tragedy as in the case of Philando Castile.
As we talk about disparate impact vs. intent, it is useful to refer back to the Constitution. The 3/5 clause is famous for its valuation of slaves at a portion of free people. Nowhere does that mention the race of who a slave was, though it does explicitly state that nontax-paying Indians were not to be included in population counts for apportionment. However, there was essentially only one race to which slaves belonged, and that was Black.
For most of us, we can legitimately say that we try not to be intentionally racist. But that is not enough. On its face, EO9066 is not intentionally racist, it is only with the context of how it was implemented we see the racist impact. The Constitution, our drug laws, traffic laws and the like are on the surface, nonrace specific, but in implementation affect different racial groups very differently.
It is time we fully reckon with the disparate impact of our policies today and in the past. A full reckoning requires us to provide redress. Our government did this in 1988 with the passage of Japanese American redress.
It is time for our government to do the same for Blacks who were wronged by slavery, Jim Crow and even today by the disparate impact of policies that surgically target and oppress Black communities.
Taking responsibility for mistakes should never come easy. It shouldn’t necessarily be thought of as punishment, but there should be cost. For Japanese American redress, the cost to our country was over $1.6 billion. What would be the cost of compensating those historically and currently wronged by slavery and its legacy? HR40 is the clearest path to making that determination so that we can be held accountable as a country.
As we remember our own experience as a Japanese American community, we must place our experience in the context of the long moral, or perhaps immoral, arc of our country, and ensure that we all take responsibility for the legacies of historic wrongs and seek to right them in the present before it is too late for another generation.
David Inoue is executive director of the JACL. He is based in the organization’s Washington, D.C., office.