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CityLab
Housing
WHAT ENDING ‘RIGHT TO SHELTER’ COULD MEAN FOR NEW YORK CITY’S HOMELESS
POPULATION
Mayor Eric Adams is eager to scrap the decades-old policy to relieve strain on
the city’s shelters. But breaking this unique covenant holds risks, advocates
warn.
An NYC Emergency Management official during a tour of the now-closed
emergency shelter for asylum seekers on Randall's Island in New York City in
2022.
Photographer: Victor J. Blue/Bloomberg
By
Sarah Holder and
Kriston Capps
+Follow
June 2, 2023 at 11:00 AM GMT
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IN THIS ARTICLE
0322022Z
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In 1979, a 26-year old lawyer named Robert Hayes filed a class-action lawsuit
against the city and state of New York on behalf of homeless people facing
overcrowding in shelters. The suit argued that the state’s Depression-era
constitution established a responsibility for the government to provide
emergency care for its neediest.
Robert Callahan, a man who had been living among the flophouses and missions of
the Bowery neighborhood in Lower Manhattan, agreed to serve as lead plaintiff in
the case Callahan v. Carey. With winter drawing near, in December the court
granted preliminary relief to the plaintiffs; they returned to the court seeking
safe beds and clean conditions, not just access to shelter, which ultimately led
the city and state to sign a consent decree that would establish a landmark
“right to shelter” for homeless men in New York in 1981.
Despite several attempts by past administrations to roll back the mandate, New
York City’s right to shelter has endured for four decades, expanding to cover
women and families and cementing as “a kind of policy ethos of our city,” as
Hayes, now CEO of the nonprofit Community Healthcare Network, recently told
Curbed. Its protections are part of the reason why the city has among the lowest
rates of unsheltered homelessness in the country — though its overall unhoused
population is second-highest.
RIGHT TO SHELTER SETS NEW YORK APART
Compared to other US cities with the largest homeless populations in 2022, NYC
and Boston's rate of unsheltered homelessness is far smaller
Source: Department of Housing and Urban Development's 2022 Point-In-Time count
Now the Bowery’s flophouses have been replaced by luxury condos, and the city’s
social services are facing new demands from an influx of more than 70,000 asylum
seekers and other migrants who have arrived since early 2022, many of them with
no place to stay.
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New York City’s situation is novel in at least a couple of ways. The city has
found itself tangled in a migrant crisis in part for political reasons, after
Republican governors like Texas’s Greg Abbott began sending buses of asylum
seekers to Democratic-run cities in 2022 to draw attention to border security —
and score points with their bases. But unlike cities such as Chicago and
Washington, DC, that are also receiving large numbers of migrants, New York has
a court-ordered responsibility to take action.
The city requested $350 million in federal funds to bolster its efforts in
shouldering the brunt of the wave, but will only receive $30.5 million in
Federal Emergency Management Agency aid.
To ease the strain on the city’s safety net, Mayor Eric Adams temporarily rolled
back parts of the pioneering right-to-shelter rule in May and has asked the
courts to consider pausing the Callahan judgement during times of intense
budgetary pressure. Homelessness advocates are sounding the alarm, saying that
breaking this unique covenant with a vulnerable population will put them at
greater risk.
“The horrible irony is that, you know, things are so much worse now than they
were back then,” said Edward Josephson, the supervising attorney for the Legal
Aid Society of NYC’s Civil Law Reform Unit. “If [Adams] closes the door to the
shelter, these folks will be in the subways or on the sidewalks.”
A MANDATE UNDER FIRE
The Adams administration argues that the right to shelter is getting
increasingly difficult to fulfill, given the demands asylum seekers have added
to its shelter system. Under the mandate, homeless families with children who
arrive at a shelter before 10 p.m. must be given a shelter bed the same night
they request one, and single adults must be taken in within a day. According to
the city, since last year the Department of Homeless Services has seen a 75%
increase in its shelter population, which now includes more than 45,000 asylum
seekers; the city’s total homeless population has reached 95,000 people.
To make room for migrants, the city has opened 157 additional emergency shelters
in city-owned buildings and locations like hotels, former jails and a now-closed
temporary facility at Randalls Island. The city estimates it will have spent
more than $4 billion on shelter and services for asylum seekers by next July.
On May 23, a lawyer for the city asked Deputy Chief Administrative Judge Deborah
Kaplan for a broad exemption from the right-to-shelter mandate when the city
“lacks the resources and capacity to establish and maintain sufficient shelter
sites, staffing, and security to provide safe and appropriate shelter.”
That time has come, wrote the lawyer, assistant corporation counsel Jonathan
Pines: “The unfortunate reality is that the city has extended itself further
than its resources will allow.”
The city says that the mayor does not seek to end New York’s right to shelter,
but rather is asking the court for relief, since no party could have imagined
the current situation when the consent decree was signed four decades ago.
“Given that we’re unable to provide care for an unlimited number of people and
are already overextended, it is in the best interest of everyone, including
those seeking to come to the United States, to be upfront that New York City
cannot single-handedly provide care to everyone crossing our border,” Adams said
in a statement on May 23.
The scale of the current migration surge has brought renewed calls from critics
of the policy who argue that a blanket right to shelter is too rigid for a city
of New York’s size, or a humanitarian crisis of this scale.
In a recent New York Times op-ed, Linda Gibbs, a principal with Bloomberg
Associates, wrote that the policy “crowds out better solutions, starving
resources from other approaches to address housing instability;” as a result,
the city is “hamstrung in its efforts to adapt the shelter system to meet
emerging needs.” Gibbs, a former commissioner of the city’s homeless
services, was deputy mayor for health and human services in the administration
of former mayor Michael Bloomberg, which challenged the right to shelter in
court unsuccessfully in 2009 and 2011. (Bloomberg is the founder and majority
owner of Bloomberg LP, the parent company of Bloomberg News.)
BUILDING A CITY OF SHELTERS
Mayors like Rudy Giuliani and David Dinkins also tried, without success, to
alter the right-to-shelter mandate during their terms. The tides of
homelessness in New York have turned with shifts in policy: In the 1970s and
’80s, mental health deinstitutionalization, the collapse of single-room
occupancy rentals and an overwhelmed foster care system fed homelessness; during
the last two decades, depressed housing supply, flat incomes and soaring
rents pushed the city’s social services. A right to shelter has never been a
fixed solution to a static problem.
But homeless advocates in New York have long been adamant that striking down the
mandate would be harmful, saying that without it there’s little to ensure that
the city will bring to bear the resources necessary to contend with the
realities of street homelessness. In a letter, the Legal Aid Society and the
Coalition for the Homeless — whose combined legal advocacy efforts led to the
1981 consent decree — argued that the city’s request would amount to a sweeping
rollback of “bedrock legal protections” when it could perhaps better address the
current emergency with “a narrowly tailored request to temporarily modify
particular standards.”
In the worst-case scenario, street homelessness could return to levels seen more
than 40 years ago, when tens of thousands of New Yorkers slept in doorways, park
benches and subway stations. While the 1981 consent decree did not require New
York to open new community shelters as the plaintiffs sought (and as Mayor Ed
Koch staunchly opposed), it did force the city to come up with answers fast.
Facing stiff resistance from residents who did not want permanent shelters built
in their neighborhoods, the city at first turned to vacant schools and armories,
even busing people to Camp LaGuardia, a facility in rural Orange County 70 miles
outside the city.
A shelter in the Fort Washington Avenue Armory in New York City in 1988.
Photographer: Yvonne Hemsey/Hulton Archive via Getty Images
Ultimately, a massive network of shelters — administered by the city’s
Department of Homeless Services as well as other agencies, private operators and
faith-based groups — emerged in the wake of the Callahan mandate, enough
to accommodate more than 65,000 men, women and children as of January 2021. So
extensive is this system that only a fraction of the city’s homeless population
sleep outdoors: Fewer than 2,400 people were counted on the streets at that same
time, according to the city’s Department of Homeless Services. The US Department
of Housing and Urban Development estimates that one out of every five people
experiencing sheltered homelessness in the US are in New York City.
Compare that to West Coast cities, where large sidewalk encampments signpost the
scale of the homelessness crisis. In San Francisco, more than half of unhoused
people do not have shelter; three-quarters of San Jose’s homeless residents are
unsheltered, according to the Department of Housing and Urban Development’s 2022
point-in-time count.
“New York City is unique,” says Eric Tars, legal director for the nonprofit
National Homelessness Law Center. “In Massachusetts, there’s a kind of more
limited right to shelter for families. But New York City is the only one that
has sort of this universal approach.”
In the District of Columbia, for example, the city’s limited right to shelter
applies only in extreme cold or heat.
Still, advocates don’t necessarily feel that the right to shelter should be
expanded to more cities. They share their own guarded criticisms of New York’s
situation. When it was originally issued, the consent decree forced the city to
address homelessness — an unprecedented action at the time. But today, the
policy commits New York to a dated approach, says Ann Oliva, CEO for the
nonprofit National Alliance to End Homelessness, meaning the city is wedded to
funding shelters at the expense of more permanent solutions.
While her organization opposes any effort to end right to shelter for New York,
Oliva says the current policy gives the city little leeway to adopt other
strategies — namely the “housing first” principle that the best and cheapest
solution is to simply provide housing to people who are homeless.
“It has not been modernized in a number of years. When you have a system that is
built on litigation in the way that New York City’s is, it can become
unbalanced,” Oliva says. “As the Adams administration thinks about it, they have
to think about this incredibly carefully.”
THE RIGHT WAY FORWARD?
Curtailing or suspending the consent decree could create more problems than it
would address, says Siya Hegde, staff attorney for the National Homelessness Law
Center. It could also potentially limit the power of the courts to act on behalf
of homeless residents as a class. That would set a dangerous precedent just as
the city proceeds with directives such as involuntary commitments of people
suffering mental health crises, Hegde says. “Where is the court able to step in
moving forward if something like this were to recur?”
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The city argues that it is strengthening legal protections for homeless New
Yorkers even as it adapts to a migrant surge and pleads for federal help. In
May, Adams approved legislation that establishes a Homeless Bill of Rights in
the city, affirming that people have the right to sleep outside in certain
areas, and giving shelter occupants more recourse to raise concerns about
conditions. That’s a long way from Giuliani-era crackdowns: “Streets do not
exist in civilized societies for the purpose of people sleeping there,” the
former mayor said in 1999.
To support the needs of asylum seekers, the Legal Aid Society and the Coalition
for the Homeless have pushed for the state and federal government to provide
more aid, and for the city to advance measures to more quickly move people from
the shelter system into permanent housing. Last week, the city council approved
legislation that would end the city’s policy of making people spend 90 days in
shelter before being eligible for housing vouchers, and that would expand other
eligibility requirements. But Adams has opposed the bills, citing disagreements
with the council about costs and shelter-stay requirements.
“I’d like to think that they don’t really intend to just turn people away and
make them sleep in the subways, but if not that, then what?” said Josephson.
“Either you shelter people or you don’t. There really isn’t a third thing.”
— With assistance by Laura Nahmias
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