Flickr/Hiu Tai

The current ruffle over AirBnB shows civil rights laws and court victories haven’t fully flushed Jim Crow blood from America’s veins.

This week marks the 120th and 62nd anniversaries of the landmark Plessy v. Ferguson and Brown v. Board U.S. Supreme Court decisions, respectively.

Plessy legalized the racial “separate but equal” policy on May 18, 1896. Brown reversed that decision on May 17, 1954, finding that anything separate is inherently unequal, especially given America’s unique history of racial discrimination. What the U.S. learned about itself in those six decades between those two rulings was supposed to guide policymaking in the post-Brown era. The full accommodation and integration of African Americans into all institutions and living venues of U.S. society is Brown’s ultimate goal.

Clearly, we’re not there yet. But if anything should have signaled a promising turn towards unlocking that achievement, it’s the emerging sharing economy. People offering up their homes, offices, and cars to the public seems like a decent path toward affirmatively furthering fair-living practices. At the very least, it improves on service deliveries where older, existing industries have failed—some African Americans have found it easier to grab an Uber than hail a cab.

But things are shaking out unevenly across the sharing economy galaxy. A group of Harvard researchers found in a January 2016 study that black people have been rejected by Airbnb hosts at much higher rates than white ones. The study reads:

Overall, we find widespread discrimination against African-American guests. Specifically, African-American guests received a positive response roughly 42% of the time, compared to roughly 50% for White guests. This 8 percentage point (roughly 16%) penalty for African-American guests is particularly noteworthy when compared to the discrimination-free setting of competing short-term accommodation platforms such as Expedia. The penalty is consistent with the racial gap found in contexts ranging from labor markets to online lending to classified ads to taxicabs.

For evidence on this, check out this talk at the Root between Evita Robinson, creator of the black traveler network Nomadness Travel Tribe, and the writer Sherrell Dorsey about the many AirBnB complaints Robinson’s heard from her members. According to Robinson, hosts frequently “go silent in conversations,” when they realize they’re possibly speaking with black renters. Or they cancel itineraries altogether.

“While it may be an assumption that it’s race-related, it is noticeable to these members and can happen many times over, making them question why,” Robinson said.

Gregory Selden needed answers to those questions, given his own experiences as an African American getting rejected by AirBnB hosts, so he took his story to Twitter. It turned out he was far from the only victim of this. Selden’s video triggered a fusillade of Tweets from other African Americans saying they suffered the same rejection, under the hashtag #AirBnBWhileBlack, which has become an official viral phenom. The Twitter stories provide names and faces to the stats in the Harvard study on AirBnB discrimination.

Selden is now suing the crib-sharing company on racial discrimination grounds. But the sharing economy currently lurks in a “legal grey area” among civil rights laws, which have few easy answers in cases when the line between public and private space is blurred. University of Denver law professor Nancy Leong explores this frontier in an upcoming paper for the Georgetown Law Journal, “The New Public Accommodations.” Writing about her study in The Washington Post, Leong states:

Race discrimination by sharing economy participants requires us to consider how the law should take account of subtle or even subconscious bias that results in race discrimination. Moreover, discrimination in the sharing economy adds a new twist: How should the law respond when, for example, the discriminator is not a desk clerk at a hotel but rather a private property owner renting out her own home?

Leong suggests that there are legal remedies available in Title II of the Civil Rights Act and also in the Fair Housing Act, both of which Selden is using in his lawsuit against AirBnB. There’s no guarantee of success, however. Little, if any, solid case law exists on how to resolve civil rights claims when looking at people sharing their privately owned properties for profit.

“In the end, it may be that our existing civil-rights laws simply need updating,” Leong writes in the Post, “either quickly, through legislative action, or incrementally, through court decisions.”

That latter, slower route is how Brown v. Board came about. It was a consolidation of several different civil rights lawsuits filed against various schools over the rejection of black students. Even after the Brown decision, it took several more such lawsuits to get schools to start complying with integration mandates. Led by NAACP attorneys Thurgood Marshall and Charles H. Houston, these lawsuits paved the way for legislative action in the 1960s, namely the Civil Rights and Fair Housing Acts, which helped further crumble America’s segregation complex.

Yet the current ruffle over AirBnB is evidence that court victories and legislation aren’t enough to fully flush the Jim Crow blood from America’s veins. Beyond #AirBnBWhileBlack, home-sharing businesses have also been accused of reducing housing options for low-income families, by taking more habitable units off the permanent-resident market. Further, Richard Florida recently noted how the creative class—which includes the showcase entrepreneurs and craftsmen of the sharing economy—has perpetuated racial exclusion in terms of job distribution. Writes Florida:

Across America, almost three-quarters (73.8 percent) of all creative class jobs nationwide are held by white (non-Hispanic) workers, compared to about nine percent (8.5 percent) by African Americans. By way of comparison, non-Hispanic whites make up roughly two thirds of the population (64 percent) compared to 12 percent for blacks. While 36 percent of all workers nationally are part of the creative class (as defined below), 41 percent of white workers hold creative class jobs, while just 28 percent of black workers do. …

And there is not a single large metro across the U.S. where the share of black workers in the creative class exceeds the share for white workers. Our efforts to build a more inclusive future for Americans must take this reality into account.

A most-inclusive future is what the Brown decision demanded of us. It was not simply about erasing the legal obstacles to African Americans as they tried to access schools and other public facilities. Removing such barriers is only the first mode of racial inclusion, as Harvard law professor Kenneth W. Mack explains in the Harvard Law Review. The second mode of inclusion required by Brown, writes Mack, involves “a far more disruptive idea,” that demands the “transformation of some of the fundamental rules” governing society at large.

Mack argues that Marshall and Houston had the long-game in mind when they launched those school segregation cases sixty years ago. Their plan: “To ask for inclusion was essentially to challenge a host of local, state, and federal policies and social practices that had created whites-only neighborhoods and schools.”

This is what Selden is doing in his lawsuit against AirBnB. He is showing that the sharing economy must not be exempt from civil rights protections, nor the Brown mandate. After all, it’s not a sharing economy if goods and services only circulate freely among white consumers and producers. That’s a hoarding economy, not much different than when Homer A. Plessy was denied the ability to share a train car with white riders 120 years ago this week.

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