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Seattle University


“Am I an American?”

Written by Ethan Kutinsky
January 30, 2012

Gordon Hirabayashi was a student at University of Washington in May of 1942 when he was convicted of violating the government-imposed curfew against Americans of Japanese ancestry and for refusing to report for internment. His act of civil disobedience made its way to the Supreme Court in 1943, which, in an infamous decision, unanimously held that the curfew orders were constitutional. More than 40 years later in 1987, the Ninth Circuit Court of Appeals unanimously vacated Hirabayashi’s conviction on proof that the government lied to the Supreme Court during World War II.

The School of Law’s Korematsu Center for Law and Equality will host a day-long conference on Saturday, Feb. 11 at Campion Ballroom to commemorate the 25th anniversary of the Ninth Circuit opinion in the Hirabayashi v. United States case. 

Hirabayashi was born to Japanese immigrant parents who ran a fruit stand near Auburn, Wash. While at the University of Washington, he became involved with the American Society of Friends, a Quaker organization, and became interested in nonviolent protests and conscientious objection to war. After the Japanese attack on Pearl Harbor, the government imposed a curfew on persons of Japanese ancestry, and Hirabayashi defied the order. Hirabayashi questioned why he had to run back from the library to his dorm before curfew—just because he was of Japanese ancestry— when his classmates did not. Hirabayashi wrote, “Why the hell am I running back and nobody else is? Am I an American?”

An American citizen by birth, Hirabayashi was indignant that he was treated differently solely because of his race: “This was so pointedly, so obviously a violation of what the Constitution stood for, what citizenship meant.” Turning himself in to the FBI in protest, Hirabayashi handed an agent a letter stating that if he were to comply with the curfew order, “I would be giving helpless consent to the denial of practically all of the things which give me incentive to live.” Hirabayashi stated, “I was confronted with a dilemma. Do I stay out of trouble and succumb to the status of second-class citizen, or do I continue to live like other Americans and thus disobey the law?” 

Hirabayashi spent three months in jail for violating the curfew and exclusion orders, and later an additional year in jail for refusing to report for military service.

The Supreme Court unanimously ruled against him. Writing for the court, Chief Justice Stone advanced the opinion that during wartime, “the successful prosecution of the war” may justify measures which “place citizens of one ancestry in a different category from others.” 

But there was unease on the court. In a special concurrence, Justice Francis Murphy wrote that enforcing the military orders against Japanese Americans bore a “melancholy resemblance” to Nazi treatment of Jewish people. Eighteen months later, writing in the famous Korematsu v. United States case about Japanese internment, Justice Murphy dissented more plainly, concluding that America’s policies directed against Japanese citizens fell “into the ugly abyss of racism.”

In 1981, lawyer and political historian Peter Irons called Hirabayashi with news of evidence that proved that the government had suppressed, altered and destroyed material evidence while it was arguing the Korematsu and Hirabayashi cases before the Supreme Court. Hirabayashi recalls telling Irons, “I’ve been waiting over 40 years for this kind of a phone call.”

With the support of a team of remarkable Seattle attorneys, he filed a Petition for Writ of Error Coram Nobis, a rarely-invoked legal writ available to criminal defendants whose trials had been tainted by “fundamental error” or “manifest injustice.” In overturning his criminal convictions, Justice Mary Schroeder of the Ninth Circuit wrote that the military orders issued against Japanese citizens were “based upon racism rather than military necessity.”

Hirabayashi earned his Ph.D. in sociology from the University of Washington, and went on to a career as a professor of Sociology at the University of Alberta in Canada, where he served as chair of the Department of Sociology from 1970 to 1983. Hirabayashi continued to be active on behalf of human rights after retirement. Hirabayashi died of natural causes on Jan. 2, 2012. He was 93.

Conference and exhibit 

Admission to the conference for members of the general public is free, although you must register to attend. In addition, the law library has put together a remarkable exhibit on Hirabayashi’s life and cases, which includes photographs, the journal he kept while in the King County Jail after his arrest, personal letters, court documents and other materials. The exhibit is open Feb. 11-June 25, Monday-Friday, 9 a.m.-5 p.m., and Saturday and Sunday, 10 a.m.-5 p.m.

Ethan Kutinsky is a third-year law student who is working as a Student Fellow for the Korematsu Center for Law and Equality and serving as an extern at the Consumer Protection Division of the Attorney General's Office.