Just based on a plain reading of the Civil Rights Act of 64, I don't see how this practice is considered legal.
> It shall be an unlawful employment practice for an employer 2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
It's interesting how very clear language, like the above, can be eroded away over the years by a hundred well-meaning court decisions.
The "very clear language" you speak of actually created gaps in the law which ostensibly still abided by the letter. For instance, the SEP article on affirmative action[0] notes that employers, faced with the new act, would remove the pipeline which funneled black people into maintenance jobs but add a requirement such that anyone over a certain number of years at the company would not be allowed to transfer to another department. While seeming fair in according to 'race, color, religion, sex or national origin' its intent and effect was to trap the older black workers (who were of course all hired into maintenance divisions) in their current job and stop them from moving up.
>Thus, preferential affirmative action in the workplace served the same rationale as the non-preferential sort. Its purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act.
In fact, some philosophers have argued that merely receiving the fruits produced by injustice is enough to make one personally liable to compensate a victim for the injustice.
There's a lot of holes in this logic. For one Asians are hit hardest by affirmative action, but we're historically victims of racism themselves.
Not to mention this had a big risk of empowering people to act in what many would probably consider a bigoted manner. Many whites feel that they face injustice due to their race [1]. Under your proposed moral framework many whites would be justified in discriminating in favor of other whites. Remember, you don't have a monopoly over other people's ideas of who is and isn't benefitting from injustice.
>Under your proposed moral framework many whites would be justified in discriminating in favor of other whites.
I haven't proposed any moral framework, I only wanted to elucidate the positions on affirmative action and that it's not nearly as simple as the law itself being twisted to bad ends, but that it comes from a set of difficulties introduced as a result of the law being introduced. When I said "some philosophers", I meant it. If you'd like to read the paper I'm referring to in particular, it's Boxill (1972)[0].
>“We know that all blacks, lower class, middle class, and upper class, have been wronged by racial injustice” (Boxill 1984, 164). In Boxill 1978, 251, he argues that the correlation between “preferences received” and “compensation deserved,” though not perfect, is very high. A recent piece by D. W. Haslett (2002) also conceives of affirmative action as a way to neutralize “tainted” advantages enjoyed by whites, although he concedes that the neutralization is “extremely rough” (83). James Sterba carries on the tradition, striving to refute the claim that affirmative action distributes its benefits and burdens in an up-side down way, rewarding well–off blacks and placing the costs on unoffending whites. Well–off blacks are no less victims of discrimination, he insists, and nearly every white has unjustly benefited from racial discrimination (Sterba 2009, 89–90. Fiscus 1992 echoes Justice Brennan’s argument and generalizes it.
The spirit of the Civil Rights movement was to address lingering injustices that particularly affected the descendants of victims of the Atlantic slave trade. For a couple of decades, the spirit and intent of the law were coalescing, via affirmative action and other bias-busting policy.
I think that someone along your thought process could make a strong case that the spirit of the Civil Rights movement has changed, that the intent should change with it, that an attempt was made (a somewhat successful attempt actually) to raise the social standing of the descendants of the victims of the Atlantic slave to a place that reflects their contributions to our nation, that now other groups have been left behind and need some attention. You could make this case, and I think you’d find a lot of agreement. But, and I say this as respectfully as possible, don’t be so obtuse to why the Civil Rights movement happened to think that it’s interesting how language changes.
Granted plenty of people that supported the Civil Rights may have done so because they wanted equal protection to work both ways; they wanted society to uphold the Golden rule of, "treat others how you want to be treated". One group agrees not to discriminate against others in exchange for the assurance that they will not be discriminated against themselves.
To those people, affirmative action would seem a lot like a bait an switch and a clear violation of the intent of the law.
Can you clarify your last sentence? What am I being so obtuse about?
To me the Civil Rights Act was a very well written law -- something we don't have enough of anymore. Nearly everyone can read and understand its intent.
If we as a people decide that we want to overturn the Civil Rights Act to allow differing treatment based on race in order to achieve social justice -- then the right way to do that is by having a debate in congress and passing new laws.
> It shall be an unlawful employment practice for an employer 2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
It's interesting how very clear language, like the above, can be eroded away over the years by a hundred well-meaning court decisions.