One of my passions is to help people be fair to their roommates. But how fair are you required to be to your potential roommates? Roommate.com is a popular roommate finding site, which allows you to search for roommates based on sex, age, sexual orientation, and family status. Is this fair? The Fair Housing Council of San Fernando Valley thought not, and the case landed in the 9th Circuit Court of Appeals.
The Court tasked itself with interpreting the Fair Housing Act, to see if it applies to the roommate search process. The Fair Housing Act prohibits landlords/owners from renting or selling a “dwelling” based on race, sex, religion, or national origin. Under the Fair Housing Act, you can’t even post an advertisement stating a preference for a tenant that fits one of these categories. So if the Act applies to roommates, helping people search for roommates of a certain sex is against the law.
The question is: are individual bedrooms within an apartment a “dwelling” protected by the Fair Housing Act? The court gave its answer on February 3rd, and the answer was no: the Act does not protect roommate searches.
Now, I’m not a lawyer or a law student, so my opinion on this issue is strictly editorial. But as an important roommate fairness issue, I would like to weigh in.
On the one hand, it’s realistically quite hard to live in some cities without a roommate (New York, for instance). If discrimination is allowed in roommate choice, then a person being discriminated against is at a serious disadvantage in finding a place to live in a desirable neighborhood. Surely, the Fair Housing Act was designed to prevent this from happening. This was my first instinct, and I was a little bit shocked by the opinion.
However, after reading the opinion itself, I found myself mostly agreeing with the logic of the argument. The big difference between discriminating as a landlord and discriminating as a potential roommate is that, as a landlord, you don’t have to live with your tenant. Renting an apartment to only certain races, sexes, or nationalities is discrimination, pure and simple. However, I can imagine legitimate religious or gender-based reasons for picking a certain roommate (for instance, you share a bathroom or kitchen with them).
Who you bring in to your private home is a very personal decision that the state has no business regulating. This is the part of the opinion that convinced me.
The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private…. [two paragraphs omitted] “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.” Lawrence v. Texas, 539 U.S. 558, 562 (2003).
Holding that the FHA applies inside a home or apartment
would allow the government to restrict our ability to choose
roommates compatible with our lifestyles. This would be a
serious invasion of privacy, autonomy and security.
For example, women will often look for female roommates
because of modesty or security concerns. As roommates often
share bathrooms and common areas, a girl may not want to
walk around in her towel in front of a boy. She might also
worry about unwanted sexual advances or becoming romantically involved with someone she must count on to pay the rent.
An orthodox Jew may want a roommate with similar
beliefs and dietary restrictions, so he won’t have to worry
about finding honey-baked ham in the refrigerator next to the
potato latkes… Taking away the ability to choose roommates with similar dietary restrictions and religious convictions will substantially burden the observant Jew’s ability to live his life and practice his religion faithfully. The same is true of individuals of other faiths that call for dietary restrictions or rituals inside the home.
One could add many other examples. It would be odd to think that the Fair Housing Act was trying to prevent people from considering these roommate compatibility issues.
What was not made explicit by this opinion is whether or not individuals have a legitimate right to discriminate based on race in their choice of roommate. It bothered me that many other examples are used, but no comment is made to clarify this confusing line between private choice and civil rights. It’s especially frustrating in light of the history of the FHA, which began as Title VIII of the 1968 Civil Rights Act. In light of this racially charged history, I found the following two remarks of the opinion extremely off-putting.
Because of a roommate’s unfettered access to the
home, choosing a roommate implicates significant privacy
and safety considerations… when you invite others to share your living quarters, you risk becoming a suspect in whatever illegal activities they engage in.
While safety is obviously a legitimate roommate concern, the omission of race from most of an opinion combined with a discussion of “safety considerations” and “illegal activities,” left me with a bad taste in my mouth. What exactly is the Court implying? Though it is left unsaid, this passage implies to me that generalized racial fears about crime are an allowable justification for a person to publicly conduct a roommate search explicitly based on race. This is the kind of thing I was worried about before I read the opinion.
In fairness, this might not be the intent of the opinion, and a more specific opinion about race discrimination among roommates isn’t required to rule on the issue. If Chief Judge Kozinski felt there were potential constitutional problems (as argued above) with defining “dwelling” as a bedroom within a home, this meant the Fair Housing Act doesn’t apply to roommate selection, so the law as a whole doesn’t apply, which is enough to make a decision in this case without dealing with the hypothetical example of a racially-based roommate search.
However, in context, the wording chosen felt to me like a defense of racist thinking. While safety is a good reason to preserve people’s personal choice, that doesn’t make it a legitimate reason to using race as a search criterion before you even meet someone. People ought to make an assessment about how safe a roommate will be by speaking with them, or assessing their individual reputation. Allowing Roommate.com users to hypothetically search only for certain races would go back to my worry about groups being discriminated against and not being able to find an apartment and being kept out of the neighborhood.
That said, there are also non-racist cultural reasons to want to live with people of the same race or national origin as you. For instance, one may want to live with only Russian graduate students because one admires their music or food. Some people may enjoy living with people with whom they share cultural interests, such as an interest in black culture. I’m not sure we need a law specifically forbidding racial based searches if most searchers are non-exclusionary, and I think a private right to live with whom you choose exists. But the way in which the court left things leaves me worried that the Constitution leaves no remedy against a hypothetical situationt in which roommate ads for desirable apartments can feature bylines like “Whites only.”
On balance, I would agree that the Fair Housing Act should not apply to individual bedrooms in the interests of personal privacy and common sense. I would agree that individuals have a right to pick their roommates in individual cases, and that common standards of decency are keeping blatant racism out of most roommates advertisements I have seen. However, if Congress were to pass a law called the “Civil Rights For Roommates Act” in response to evidence of racist roommate searches, banning a search-by-race feature from roommate selection websites ought to be constitutional.
You can read the coverage that brought this to my attention in the LA Times.
* Full disclosure: Splitwise has a link exchange with a competing roommate website, EasyRoommate. Roommate.com redirects to Roommates.com, for some reason. I added some clarifying comments at 3pm on February 7th due to early feedback.