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Mayor Adams wants to reassess New York’s right to shelter. Can he?

The decades-old shelter policy would have to go back to court to be undone, experts say.

September 19, 2022 Rachel Holliday Smith and Gabriel Poblete, THE CITY
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Logo for THE CITYThis article was originally published on by THE CITY .

For decades, New York has had a right to shelter, meaning that anyone who does not have a roof over their head can get one through the city-run homeless shelter system.

That right has been tested in recent weeks by a new challenge: an influx of thousands of Central and South American asylum-seekers who have arrived in the city with no places to live, no jobs, and hardly any possessions.

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Amid the pressure to find emergency housing for them, Mayor Eric Adams seemed to cast doubt on the long-standing right to shelter, saying in a statement that it “must be reassessed.”

Later, the mayor’s chief counsel walked back those comments, saying “we are not reassessing the right to shelter. We are reassessing the city’s practices around the right to shelter.”

It’s not the first time a new mayor has struggled with the shelter mandate, or tried to get around it. But City Hall has little power to change the court-mandated right, experts told THE CITY. Here’s how it works:

Where does New York’s right to shelter come from?

The city didn’t have a right to shelter until a series of court actions brought by the Legal Aid Society culminated in settlements and judgements between 1981 and 2008 that created a permanent right to shelter in New York City.

The first case, Callahan v. Carey, was brought against the city in 1979 on behalf of a homeless man, Robert Callahan, who was represented by Robert Hayes, a co-founder of the Coalition for the Homeless. The plaintiffs argued that Article 17 of New York State Consolidated Laws, which covers Social Welfare, obliges the government to provide adequate shelter.

Settlement of the case in 1981 paved the way for subsequent legal action on behalf of homeless women and families.

“That is the cornerstone of our social safety net. If all else fails, the city will ensure you don’t freeze to death in the streets,” said Josh Goldfein, staff attorney at The Legal Aid Society’s Civil Practice.

The right is not an administrative policy or a law created by a bill; it is the result of years of litigation, in three separate cases, that concluded with the city agreeing or being ordered to provide shelter in the five boroughs.

Could the mayor get rid of the right to shelter?

No — not unilaterally. The city would have to return to court and file a court order requesting changes to the previous court orders. Mayor Adams, or any mayor, lacks the authority to do that without judicial approval.

Adams now insists he has no interest in challenging the decades-old right to shelter. But even if he did, advocates say there’s not another practical or workable solution.

“What’s the alternative? The alternative is that people are sleeping in the streets,” Goldfein said. “These are families. New York doesn’t want children in the street.”

The mayor, through the Department of Homeless Services, can change some details of how the city complies with the court orders, though those changes could become the subject of new legal challenges.

The Coalition for the Homeless would almost assuredly have something to say about that. As the court-designated monitor of the city’s single adults shelter system, the Coalition is empowered to make impromptu visits at shelters. The Coalition also began monitoring the family shelter system, under former Mayor Bill de Blasio.

Families with children account for 61% of New York City’s unhoused people, or 34,456 of 56,334 total, according to the daily census.

Jacquelyn Simone, policy director of the Coalition, said that when the city makes any policy changes touching on the shelter system, the organization evaluates whether the city remains in line with the Callahan decree. If not, they work with the city to reach an agreement or, failing that, turn to the courts to challenge the change.

“It’s not a game of gotcha, it’s our court-mandated duty,” Simone said, alluding to comments by Mayor Adams last week that “some may want to use these extraordinary circumstances as an opportunity to play an unproductive game of gotcha.”

Other mayors have tried and failed

Adams isn’t the first mayor to question meeting the city’s obligations under Callahan, and trying to change how it meets them.

In 1990, the new administration of David Dinkins lamented how many people it had to house in so-called “welfare hotels,” and incentivized New Yorkers to stay doubled and tripled up rather than apply for shelter.

In 1999, Mayor Rudy Giuliani unsuccessfully tried to mandate that those experiencing homelessness must work to qualify for shelter, with his police commissioner saying that if unhoused people offered help by the NYPD ‘’don’t obey, we’re going to arrest them.’’

Mayor Michael Bloomberg unsuccessfully went to court in 2005 to remove the court order underpinning the right to shelter; that led to a 2008 settlement reaffirming the right to shelter for families.

Legal advocates have taken the city to court hundreds of times for being out of compliance with the law, forcing the city to provide appropriate shelter.

“The underpinnings of the right to shelter rest in the New York State constitution,” Simone said. “It’s not within any individual elected official’s powers to undo the right to shelter.”

What’s included in the right to shelter? What’s not?

The court actions over the years that created the right to shelter also enshrined standards for what shelters should feel and look like. For single unhoused people, the city at a minimum is required to provide “congregate” shelters, which are arranged dormitory style. For families, the city must provide a room with cooking facilities and a bathroom.

Critically, the city has to provide shelter by 4 a.m. for families entering intake by 10 p.m., and cannot allow families and children seeking shelter to sleep overnight in the Department of Homeless Services intake offices. Single adults seeking shelter must be given a bed within a day.

The city has reported at least two failures to meet that standard so far this year, with the most recent failure, for a group of 60 men at an intake center in Manhattan, immediately preceding Adams’ call for a reassessment.

The right mandates temporary shelter, though it does not define what “temporary” means. Homeless people can — and often do — stay in shelters for months, or even years.

It should not be confused with permanent housing, however, or a right to housing, advocates said. The right to shelter mandate should serve as a motivator for elected officials to create more permanent housing.

“We need to make sure that stays in those shelters are as brief and not recurring as possible, and that means affordable housing,” Simone said.

THE CITY is an independent, nonprofit news outlet dedicated to hard-hitting reporting that serves the people of New York.

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