In the pre-Internet era, people used analog methods like word-of-mouth referrals, printed newspaper ads and bulletin boards notices attached with pushpins to find housing and roommates. With the Internet, people increasingly turn to sites like Craigslist (a free bulletin board service) or Roommates.com (a fee-based roommate-matching service). The question is: do roommate matching sites facilitate racial discrimination in housing? The harder question is: if users on the sites engage in racial discrimination, what is the responsibility of the sites’ owners?
Isn’t that illegal? Yep. Housing discrimination based on race is illegal in the U.S. Racial discrimination in housing in the United States was officially made illegal by the Civil Rights Act of 1968. That law is currently referred to as the Fair Housing Act. Yet, housing discrimination based on race continues to exist.
There’s some excellent research and activism on this type of racism in what are called “housing discrimination audits.” These are tests by those seeking to enforce Fair Housing laws. These kinds of audits take a couple of different forms, but basically they involve sending matched pairs of people (or couples) with identical credentials but different by race to rent or buy housing. If people are treated differently based on race in these audits, then action can be taken against them. There’s an excellent (if a bit dated, from 1993) video from ABC News’ show 20/20, “True Colors,” where a white guy and a black guy both try to rent an apartment (and get a job) in St. Louis, Missouri and lots of covert racial discrimination gets captured on hidden camera.
Why is Housing Such a Big Deal? Racial discrimination continues to be a serious problem with far-reaching consequences. Housing discrimination remains key mechanism for maintaining racial segregation, and along with it, a host of other deleterious social ills (Massey and Denton, American Apartheid, Harvard UP, 1993). This is not simply the legacy of historical discrimination, but a current and persistent issue in the contemporary U.S. with far-reaching consequences. For evidence of this, see John Yinger’s Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination (Sage, 1995). In lots of really significant ways, the racial inequality in education, jobs, and health have their roots in racially segregated housing. So, if we could address housing discrimination and segregation, lots of other dimensions of inequality might be ameliorated.
So… is the Internet Helping or Hurting? In a lot of ways, the Internet can help combat racial discrimination in housing. There’s a lot of information online that helps people understand their rights to fair housing, like this site by La Raza Centro Legal. Now, you can even go online and file a complaint if you were discriminated against in trying to find housing. That’s the good news and an instance in which the Internet is helping.
The bad news is that there’s growing evidence that people are using the Internet to perpetuate racial discrimination in housing. For example, ads for housing on Craigslist rather routinely include language about race, a seeming violation of the Fair Housing Act. Some civil rights lawyers in Chicago sued Craigslist for allowing this practice (they flagged over 200 ads that were problematic under the Fair Housing Act). In March, 2008, the Seventh Circuit Court of Appeals ruled in favor of Craigslist in that case, basically arguing that if an ad appeared in the Chicago Tribune that said “No Minorities” it would be illegal and the Tribune would be held accountable for it, but if that same ad appears online, Craigslist faces no liability. Instead, Judge Easterbrook ruled that Craigslist was protected under the Communications Decency Act of 1996. This is clearly a way in which the Internet is hurting the cause of fair housing by giving Craigslist a blank check to undermine the Civil Rights Act of 1968.
FHA vs. CDA: Housing Discrimination Collides with Free Speech. The leaders in the emerging field of research about housing discrimination online are primarily legal scholars grappling with the often contradictory implications of the Fair Housing Act (FHA) and the Communications Decency Act (CDA). The CDA is relevant because of the part of that law referred to as Section 230, which has been interpreted to say that operators of Internet services (ISP’s) are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).
An important test case in all this is the lawsuit brought by the Fair Housing Council of San Fernando Valley against Roommates.com, LLC,. The Fair Housing Council alleged that the popular roommate-matching site was engaging in racial discrimination. Unlike the ruling in the Craigslist case, the Ninth Circuit has according to one scholar “put out the welcome mat for fair housing suits against roommate-matching websites.” The authors of this law review article, Diane Klein and Charles Doskow, write that the judge in this case found that:
“the Communications Decency Act does not provide immunity to housing websites under § 3604(c) of the Fair Housing Act (FHA). [And] housing websites should be held to the same standard as other advertisers of residential real estate under the FHA, and that Roommates.com is a “content provider” and hence liable for violating the FHA by disseminating advertisements that demonstrate discriminatory preferences on the basis of race, age, religion, disability, etc. “
The key idea here is that the ruling found that Roommates.com was providing “content,” meaning that it’s not covered under the CDA’s Section 230 which just applies to “service” providers. This distinction between providing “content” and providing “service” means, in the Ninth Circuit Court’s ruling, that there’s a different standard that applies and so Roommates.com should have to comply with the FHA.
Other scholars in this area disagree with the ruling in the San Fernando Valley case and argue that it’s rulings like the one in the Craigslist case that should hold sway. For example, Kevin Wilemon in his law review article, “Fair Housing Act, the Communications Decency Act, and the Right of Roommate Seekers to Discriminate Online,” 29 Wash. U. J. L. & Pol’y 375 (2009), argues that speech posted online should be protected as free speech, even if that language includes an intent to racially discriminate in housing.
Where does this leave us? We’re still in the midst of what some have called a slow, painful Internet revolution that is, eventually, going to dramatically change the way we organize social life, the way we do business, the way society is governed. When it comes to housing, as Doug Massey has pointed out, racial discrimination in housing is a constantly moving target (Social Problems 52:148, 2005). As housing choices and roommate services have emerged online, the target of eliminating racial discrimination from housing has shifted yet again.