What Is Private?

Where do we draw the line between public and private behavior? Consider:

The U.S. Court of Appeals for the 9th Circuit issued an opinion last month … that people seeking roommates are shielded from fair-housing laws by the First Amendment’s protection of free association. … The Fair Housing Act prohibits denying housing to someone based on a protected characteristic, such as race or religion. It also prohibits making or publishing discriminatory advertisements for housing. …

Two years ago I undertook a study of 10,000 housing ads posted to Craigslist … 5,000 ads for rentals and 5,000 ads for roommates. … The vast majority of discriminatory ads were taken out by people seeking roommates — that is, by ordinary individuals looking for someone to help share the rent. … Most of the ads expressing a racial, religious or ethnic preference were placed by members of minority groups who were seeking roommates like themselves. …. These people were in violation of the Fair Housing Act and subject to civil prosecution.

Just as it would be abhorrent for the government to prevent people of different races, ethnicities or religions from living together, it would be equally offensive to block people of a shared race, ethnicity or religion from living together. … If the 9th Circuit had ruled differently, the potential for backlash would have been enormous and support for a crucial civil rights law would have been undermined. (more)

Surely the main reason a landlord might care about your race or ethnicity is because your neighbors might care. If your neighbors are willing to pay more to live next to people with a race they like, then your landlord might try to accommodate their preferences. So assuming you’ll have your own private room in any case, what is the difference between apartment-mate and housing discrimination? It is mainly the difference between who you’ll share a bathroom, kitchen, couch, and big TV, and who you’ll share a garage, elevator, laundry room, playground, pool, or exercise room — and of course the bathrooms, kitchens, couches, and big TVs in your lobby and community center. Is this really what we think is the difference between acceptable and unacceptable race discrimination?

I suspect the real difference is that we are willing to blame and punish landlords, who are seen as rich and dominating, but not ordinary people. If we saw Craigslist as similarly rich and dominating, we might blame and punish them as well.

What if a group took an entire floor of an apartment building, declared it all to be a single apartment, and sought the required dozens of “roommates” from a given race? If they did it without the help of a rich firm, they’d probably get away with it. But if a rich firm helped, it would be outrageous racism!

Added 7a: Imagine Romney was revealed to have once rejected an apartment because blacks lived in the neighboring apartment. And imagine Obama was revealed to have rejected a roommate in college because he was white. How different would the resulting scandals be?

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  • Wonks Anonymous

    I think you’re right that we do view things differently depending on whether you’re a landlord or a flatmate (this previous post is relevant), but I also think there is often a very big distinction between roommates and neighbors. I live in a two story apartment with one set of roommates on each (significantly less than a dozen people in the whole building), so there should be minimal difference between roommates and “neighbors”. But there is. I know all my roommates by name, but not the folks downstairs and I interact with them far less. I’m not really in much of a repeated game with the folks downstairs, they are just there. Admittedly, there has been more flux on the first floor than the second in the time I’ve lived here. Also, there isn’t much of a shared space, really just an entrance.

    Do you think it’s important to public opinion that most of the ads expressing a preference are from minorities? For those curious, I am a whitebread American and everyone else in my building is F.O.B south-asian. When talking with such south-asians, a big obstacle when looking for apartments on Craigslist is that most Americans don’t want a roommate who smokes, and the American antipathy toward smoking hasn’t reached their home country.

  • lemmy caution

    “Where do we draw the line between public and private behavior?”

    How about “exactly where the U.S. Court of Appeals for the 9th Circuit did”?

  • Poelmo

    Robin, you said it yourself: it’s about sharing your bathroom with someone. It is reasonable to let someone choose a roommate of the same same sex, just as it is reasonable to have separate toilets for men and women in public places (though I don’t think it should be illegal for someone of the other sex, for example, transsexuals, to use them). It is unreasonable to only look for white people in an ad for a roommate, but it’s reasonable to look for only male or female roommates. For landlords or corporations it is unreasonable to discriminate on anything in an ad because they don’t have to share a bathroom with a tennant. I’m not sure you’re making this about the mean 99% bullying those poor defenseless corporations and millionaire landlords, because people concerned with sharing a bathroom is a far more obvious and less far-fetched explanation if I may say so. And before anyone says that selecting a roommate based on sex is the same as racism, I’ll address that right now: have you ever seen a racist white person marry a black person? No, you haven’t, because racism is hatred. In contrast, the vast majority of people who only want a roommate of the same sex, will end up marrying someone of the opposite sex…

  • David

    I think you misinterpreted the ruling. The court didn’t decide that the race-specific roommate ads weren’t racist or morally reprehensible. We can all agree that they are. The court ruled that this is one immorality on which the state won’t impose legal sanctions. In the same way, it’s not morally OK for my racist aunt to make racist remarks as we watch basketball on TV, but it’s also none of the state’s business.

    Why then is landlord-level housing discrimination the state’s business? Maybe because landlord-level discrimination could much more easily boot up into a racially repressive *system*, as it arguably was before these laws passed. There is no parallel danger from mono-ethnic shared housing or remarks made in front of a TV.

  • wophugus

    Yeah, this isn’t about the difference between acceptable and unacceptable discrimination, it’s about the point at which privacy concerns force us to tolerate unacceptable discrimination. If you think that sharing an apartment complex is the same level of intimacy as sharing an apartment, and involves the exact same privacy concerns, you have vastly different intuitions from most Americans.

    Not a rhetorical question: do you think police should be able to enter an apartment complex as readily as they can enter your apartment, or do you support requiring them to get a warrant (or be in hot pursuit or whatever) in the one case and not the other?

  • Brian Nachbar

    This is an example of something that I’m starting to notice in policy debates: a law based on a “common sense” distinction that isn’t logically precise. David’s explanation that landlord discrimination is banned “because landlord-level discrimination could much more easily boot up into a racially repressive *system*” relies on a notion that landlords typically hold more concentrated power than roommate-seekers. Robin points out that this isn’t necessarily the case, as a floor could be defined as an apartment and the difference between roommates and tenants could be eroded. Supporters of the “common sense” side would say that while this could happen in theory, it doesn’t in practice.

    I wonder what the track record of such “common sense” distinctions is? I’m sure there’s no end of anecdotes of them going horribly wrong, but does this happen in most cases? For example, here—is anyone actually using the roommate exemption to circumvent the law? Is this going to start?

  • Ely

    So would it be more accurate to define what we mean by racism as racism_{actual} accomplished through means obtained primarily because one has a position of wealth, power, or influence, where racism_{actual} is what we might call the naive first-glance definition of racism that we tend to picture in our minds.

    There is a desire to outlaw “racism” when that word is understood to mean certain patterns of behavior that affect people of different races in different ways, some of which are more or less objectively worse than counterfactual ways of treating people, *and* the behavior is able to succeed through some kind of wealth/power/influence factor.

    Essentially, people want to decouple some notion of “private racism” from “public racism” and to outlaw public racism while allowing private racism to still be loosely tolerated as a matter of free speech and personal choice.

    Is it really that surprising that there will be legal issues that cut right across the boundary between public and private life. Housing seems like a great example of that. Private racism would include discreetly choosing who lives around/with you, whereas public racism would be official actions taken by some sort of registered entity that is not a “natural person”, e.g. a school, cab driver, landlord, etc.

    Things become strangely hard to disentangle when you take something that a non-person entity might do, like rent out an apartment, and then look at a regular natural person doing the same action.

    I guess I’m not doing a good job of explaining what I mean because this is too wordy. But in the end, I think there could be a well-defined legal articulation of the difference between a landlord / rich firm coordinating to arrange a racial preference vs. an individual natural person making a personal decision based on a racial preference. It’s not obvious to me that I should see both of those as expressing racism in the sense that society claims it wants to remove.

  • http://omniorthogonal.blogspot.com mtraven

    I can always count on finding entirely fact-free speculation here at this blog dedicated to objective knowledge.

    Start with the unexamined supposition that the point of anti-discrimination is to “blame and punish” landlords.

    Next, ignoring the basis in law of anti-discrimination statutes, which apply to public accommodations. A landlord is legally offering a public accomodation and is bound by these laws; someone offering up a piece of their own home to a roommate is not, and isn’t. Whether an artificial borderline case like in your last paragraph is one or the other is a difficult question and its why we have courts to interpret the law.

    I think see the trick here, also used by the equally puerile Landsburg in one of the links: take some common distinction from everyday life (such as the one between private/public or between employer/employee), preferably something so ingrained that people aren’t used to justifying it, erase it, ignore all the readily-deduced reasons why such a distinction might exist, and then use it as a paintbrush to paint everyone else as “irrational” or “biased”.

    • http://jayquantified.blogspot.com/ Jayson Virissimo

      Next, ignoring the basis in law of anti-discrimination statutes, which apply to public accommodations. A landlord is legally offering a public accomodation and is bound by these laws; someone offering up a piece of their own home to a roommate is not, and isn’t. Whether an artificial borderline case like in your last paragraph is one or the other is a difficult question and its why we have courts to interpret the law.

      I’m almost certain Robin knows about the legal distinction between “public accommodation” and private domains. I believe he is asking why this is a distinction that should make a difference.

      • http://daedalus2u.blogspot.com/ daedalus2u

        Robin is asking a rhetorical question, one he knows the correct answer to, which he then answers with an answer he knows is false, but which is premised on something he (and his worthy overlords) want to change.

        Mtraven got it right. Why are landlords not allowed to discriminate in renting housing? It is not to provide an excuse to “punish” them. The idea that the poor want to “punish” the wealthy is a meme that the wealthy seem to push at every possible instance. As Krugman says:

        “But, say the wingnuts, you say that rich people are evil. Actually, no — that’s a right-wing fantasy about what liberals believe. I don’t want to punish the rich, I just want them to pay more taxes. You can favor redistribution without indulging in class hatred; it’s only the defenders of privilege who try to claim otherwise.”

        http://krugman.blogs.nytimes.com/2011/11/04/i-do-not-think-that-word-means-what-you-think-it-means-hypocrisy-edition/

        Is the “Buffet Rule” meant to punish the wealthy? If it is, then the absence of the “Buffet Rule” is just as surely meant to punish the non-wealthy.

      • KPres

        “Why are landlords not allowed to discriminate in renting housing? It is not to provide an excuse to “punish” them.”

        And, of course, nobody claimed it was. Typical of leftists, you’re bringing your own biases into your reading. The question is stated clearly…”why do we treat landlords and roommates differently?” That doesn’t imply that landlords should or should not be punished.

        Really, it’s not that hard. Both you and mtraven completely blew it because of your wildly absurd preconceptions about RH’s motivations.

      • http://daedalus2u.blogspot.com/ daedalus2u

        KPres, did you read what RH wrote?

        I suspect the real difference is that we are willing to blame and punish landlords, who are seen as rich and dominating, but not ordinary people. If we saw Craigslist as similarly rich and dominating, we might blame and punish them as well.

    • KPres

      “Start with the unexamined supposition that the point of anti-discrimination is to ‘blame and punish’ landlords.”

      Uhhh…except that no such supposition was ever made. RH clearly said that we might be more “willing” to blame and punish landlords who engage in discriminatory behavior, not that it was the “point” of anti-discrimination laws. Clearly the point is to prevent discrimination. So why we don’t punish roommates as well, since they are clearly engaging in discrimination just as the landlord?

      An interesting projection on your part, though.

  • Cardon

    { “Where do we draw the line between public and private behavior ? ” }__

    Who is “we” (?)

    There’s a major difference between informal cultural norms … and formal legal dictates.

    Cultural norms in a given society generally reflect a predominant view, enforced by non-violent, social group behavior… whereas, legal dictates on secondary/tertiary human behaviors are primarily imposed (forcibly) by minority interest groups controlling the political/legal apparatus.

    The U.S. legal system has morphed into a vast incomprehensible control apparatus — divorced from common sense and common societal norms. That legal system is much DIFFERENT from the underlying society– so it’s apples/oranges when attempting blanket statements about ‘privacy’.

    Also, RHanson has correctly diagnosed the current legal discrimination/privacy situation as a class warfare (rich/non-rich +racial equivalent) perspective. It’s a ‘horrible’, formal crime for a white hotel or restaurant owner to decline serving a prospective black customer — but perfectly OK culturally & legally… for a black person to decline using those same “public-accomodations” because he really hates white people.

    Average people can legally discriminate all they want — as long as they don’t seem to be ‘above-average’… like running a retail establishment or being an apartment rent-collector. Customers/renters/employees can discriminate freely– retailers/landlords/employers face severe penalty for the same basic human behavior.

    Equality before the law is myth– ya gotta be part of the proper “we”.

    • lemmy caution

      “Also, RHanson has correctly diagnosed the current legal discrimination/privacy situation as a class warfare (rich/non-rich +racial equivalent) perspective. It’s a ‘horrible’, formal crime for a white hotel or restaurant owner to decline serving a prospective black customer — but perfectly OK culturally & legally… for a black person to decline using those same “public-accomodations” because he really hates white people.”

      Is it unfair that pedestrians don’t have to follow traffic laws, get driver licenses, and car insurance? Is that class warfare as well?

  • Lord

    The difference is whether you have to live with them. People have to bear with their landlord, but not as much as roommates. While it is not desirable to support discrimination, prohibiting it would not prevent it, and even the discriminated would prefer openness about the situation they would be moving into. In desirable areas, it is often valuable to subdivide larger flats into single occupancy units because living with others can be so difficult living alone is well worth paying more for. Prohibiting it would be intrusive and ineffective while forcing the government into arbitration and intervention on a massive scale. This is another case of “if you can’t do everything why do anything, or if you can do something why not do everything”. It isn’t realistic or practical. That is why we have courts to apply some common sense.

  • Lord

    A more realistic counter example is one in common existence, a religious institution that owns and operates a facility for their members. If not limited to their members, the law would apply.

  • Scott

    “Surely the main reason a landlord might care about your race or ethnicity is because your neighbors might care.”

    I think you’re wrong to say the landlord’s discrimination must stem from the neighbors’ perceived racism. Surely landlords are capable of racism the same as anyone else.

  • Evan

    @Cardon

    Also, RHanson has correctly diagnosed the current legal discrimination/privacy situation as a class warfare (rich/non-rich +racial equivalent) perspective. It’s a ‘horrible’, formal crime for a white hotel or restaurant owner to decline serving a prospective black customer — but perfectly OK culturally & legally… for a black person to decline using those same “public-accomodations” because he really hates white people.

    Average people can legally discriminate all they want — as long as they don’t seem to be ‘above-average’… like running a retail establishment or being an apartment rent-collector. Customers/renters/employees can discriminate freely– retailers/landlords/employers face severe penalty for the same basic human behavior.

    In Stormwatch: Team Achilles #11 the leader of Stormwatch, Ben Santini, is asked why he hates people with superpowers so much. He replies that he hates everyone who desires to control, hurt, and dominate other people. But he pays special attention to people with superpowers because they have much more power to actually act on their desires. For that reason he seems biased against superhumans, even though he’s simply prioritizing people based on their perceived threat level.

    This is why the disparity between public and private that Robin is noticing exists. The general public perceives retailers/landlords/employers as having much more power to act on their racist desires than private individuals. For that reason the public seems biased against retailers/landlords/employers even though they’re simply prioritizing people based on their perceived threat level.

    You could argue that that perception is incorrect, that the power of competition prevents retailers/landlords/employers from acting on their desires. But it doesn’t change the fact that that perception currently exists, even if it is mistaken.

  • Poelmo

    “You could argue that that perception is incorrect, that the power of competition prevents retailers/landlords/employers from acting on their desires. But it doesn’t change the fact that that perception currently exists, even if it is mistaken.”

    In a perfectly rational society, yes. However, it can’t be a perfectly rational society, by definition, if there are members of that society who are bigots.

    • KPres

      “However, it can’t be a perfectly rational society, by definition, if there are members of that society who are bigots.”

      Of course, the vast majority of discrimination isn’t based on bigotry, but evidence and experience.

  • http://entitledtoanopinion.wordpress.com/ TGGP

    lemmy caution, RH is asking why.

    Poelmo, I don’t think your “it” is the same as what Robin’s talking about. You are distinguishing between sex and race discrimination, which is fine but not what the court & op-ed writer did.
    “have you ever seen a racist white person marry a black person? No, you haven’t, because racism is hatred”
    Amusingly enough, there was an anti-semitic cartoonist whose work can be found on the dingier corners of the net. Eventually discovered his real identity and the fact that he was married to a jewish woman (as was H.P. Lovecraft). But such anecdotal observations don’t refute statistical generalizations.

    David & wophugus, I disagree that such discrimination is considered unacceptable by society broadly speaking. Minorities self-segregating is generally considered ok, and organizations premised on such are particularly prevalent on college campuses concerned with diversity, inclusion etc. I think most people don’t perceive others as being significantly harmed by such self-segregation.

    Ely, I think that’s a a very poor definition. Deryl Dedmon is among the most reprehensible of racists, but was he particularly powerful? Also, rather than “natural person” I think a better distinguishing feature is “acting in an official/professional capacity”. We’re talking about individual agents rather than, say, a corporation.

    mtraven, Hanson didn’t say anything about anyone being irratinoal or biased. In the Landsburg link he says that he thinks the reasons we claim to do things (or make distinctions) are not our real reasons.

    daedalus2u, landlord vs tenant and poor vs wealthy are different things, though one may be correlated with another.

    Cardon, to reiterate my point above, it is not mere wealth status but the perception of domminating power. When hearing about the past of Jim Crow there will often be stories about a successful black person who is still excluded. Same with even older stories about establishments that were restricted against jews. Our perception is not that it’s okay because that particular person is well off.

    Scott, he didn’t say it’s the only reason but the main reason. The profit motive will tend to lead landlords to cater to customers, and if customers are racist the market is likely to reflect that.

    Poelmo, de gustibus non est disputandum.

  • Poelmo

    “Poelmo, I don’t think your “it” is the same as what Robin’s talking about. You are distinguishing between sex and race discrimination, which is fine but not what the court & op-ed writer did.”

    True enough, but I bet the vast majority of the discrimination the op-ed writer claimed he found was people looking for roommates of the same sex. Certain people will then shamelessly abuse this to be able to say: “see, if the brown people, faggots and women discriminate too then why do people get upset when I, the straight, white male, does the same?” Kpres’s comment is telling. I was anticipating this and went out of my way to show that the most common form of discrimination, when it comes to roommates, is not equivalent to racism at all.

    @Kpres

    I want to ask you two questions:

    1) how many years of experience, gathering evidence, has the US had with gay couples marrying?

    2) would you be be fine with being refused to enter establishments like bars, banks and shops because you are a man and experience tells society that men are far more likely than women to commit a violent crime or a robbery? In fact the crime ratio between men and women is larger than that between black and white men…

    • Douglas Knight

      It was already legal for roommates to discriminate on the basis of sex, so she ignored this kind of discrimination.

    • http://entitledtoanopinion.wordpress.com/ TGGP

      “True enough, but I bet the vast majority of the discrimination the op-ed writer claimed he found was people looking for roommates of the same sex”
      The op-ed writer said nothing about that kind of discrimination, likely for the reason Douglas Knight gives below. If you click the link, Oliveri refers to “racial, religious or ethnic preference”.

      I’m not Kpres, but I think it could be a pretty good idea to exclude people by gender (bars already price differently on “ladies night”). Some of the camps associated with O.W.S instituted “safe zones” for women due to fears of attacks. Most business establishments are better policed, but an empirical generalization doesn’t merit a normative/legal standard.

  • Captain Oblivious

    Another difference between roommate-seekers and landlords is having a large enough pile of data from which to draw statistical conclusions. If a landlord fills 100 apartments, and they’re all white people (in a mixed-race neighborhood), it’s pretty likely he’s discriminating and that’s illegal. If, on the other hand, I choose a roommate and he’s white, that doesn’t prove anything about discrimination – it doesn’t even imply it, since over half of people in most areas are white.

    After all, most people choose a spouse of the same race; are any of them discriminating against other races? Should that be punishable by law? If 1000 white people choose white spouses, that’s enough of a statistical anomaly that some of them are almost certainly “discriminating” (in the sense that they were never willing to consider a person of another race) – but which ones? Even if spouses were chosen at random, you’d expect most of the 1000 white people to end up with a white spouse, so any given case can’t really be prosecuted – even if a majority were OK with the idea of prosecuting this sort of “discrimination”.

    • http://entitledtoanopinion.wordpress.com/ TGGP

      The op-ed concerned explicit discrimination in advertising. Although I suppose one could argue that it’s pointless to ban explicit racial filtering when you know unchecked racial filtering is going to happen by the advertising tenant when the recipient shows up.

  • Andy

    Surely the main reason a landlord might care about your race or ethnicity is because your neighbors might care.

    I suspect the more common reason they would care is that some races are perceived as having certain traits that landlords find appealing, such as being reliable, honest, quiet, etc.

    On the other hand most people seeking a roommate probably just want someone of the same race as them. I don’t see anything wrong with that,just as there’s nothing wrong with most people marrying people of the same race as them. I don’t think it reflects poorly upon people that do that.

    So I suspect the difference of motivation leads us to consider the two situations fairly different.

  • http://www.isteve.blogspot Steve Sailer

    “Imagine Romney was revealed to have once rejected an apartment because blacks lived in the neighboring apartment. And imagine Obama was revealed to have rejected a roommate in college because he was white. How different would the resulting scandals be?”

    Obama’s own mother felt that her son had somewhat rejected her for her ex-husband (e.g., “Dreams From My Father”) because she was white. I’m sure we all recall the enormous resulting scandal.

  • Collusion

    No one mentioned Schelling’s segregation model: it would apply for a neighborhood, but not for a multi-tenant apartment.

    http://web.mit.edu/rajsingh/www/lab/alife/schelling.html

    • http://entitledtoanopinion.wordpress.com/ TGGP

      William Easterly says that empirically Schelling’s model doesn’t match the data.

  • ANfnby

    As some of the better objectors to Hanson’s argument have pointed out, what he has done is claimed that the line between discrimination the state should allow and discrimination the state should not allow is a quantitative one, not a qualitative one. The part they object to is Hanson’s claim that there are factors at work in the quantitative analysis besides “being forced to share a kitchen is more intrusive than being forced to share an elevator”; that is, “the greater the size of the firm, the less discrimination the state should permit”. I don’t have a dog in this fight, but there are interesting issues here to consider.

    1. Jean is a 23-year-old woman with a college education who lives alone. (a) Should the state prevent her from discriminating between sexual partners on the basis of race?
    (b) If she wishes to do so, does it matter why she prefers one race to another?
    (c) If she has a reason, does it matter whether that reason is backed by evidence? (For example, maybe she thinks black men’s penises are too big but has never slept with a black man or done any research into whether this is true).
    (d) Should she be able to advertise (on Craigslist, for example) for potential sexual partners with explicitly race-based restrictions?
    (e) Does the answer to any of the above depend on what race Jean is or what race she wishes to discriminate against?

    2. Jean is a 23-year-old woman with a college education who lives alone. Since prostitution has been legalized, she has been the sole proprietor of her own prostitution business, which is operated out of her home and of which she is the only employee. (a)? (b)? (c)? (d)? (e)?

    3. Jean is a 23-year-old woman with a college education. Since prostitution has been legalized, she has been working at Bedford’s Brothel Inc., whose CEO is a man. There are 100 women employed to provide sexual services. There are 50 other employees, 60% of whom are male, including management, guards, bartenders, health services, and janitorial staff. All of them (except management) are unionized and receive good pay and benefits.

    (a) Should the state prevent Bedford’s from discriminating against potential clients on the basis of race? Do the gender politics within the corporation matter? If Bedford’s isn’t allowed to discriminate, should individual prostitutes it employs, such as Jean, be allowed to? Should the union be allowed to negotiate for provisions prohibiting certain races or allowing individual prostitutes to discriminate based on race?
    (b)? (c)?
    (d) If Bedford’s is allowed to discriminate based on race, should it be allowed to advertise this? If the union is able to negotiate terms allowing its members to discriminate based on race, should it be allowed to point this out when trying to recruit new members?
    (e)?

    The point here is to try to figure out exactly which intuitions are driving the policy and, once we find them, figuring out whether they are rational and whether we should keep them.

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