City Limits spoke with Legal Aid Society Attorney-in-Chief Steven Banks last week, following the settlement announcement Sept. 17. Banks has worked on this case since Yvonne McCain, a single mother and victim of domestic violence who was turned away from the city shelter system, first brought the suit in 1983. He spoke with us about what the settlement means, how the rights of homeless families will be protected, and what impact this work has had for both the Legal Aid Society and Yvonne McCain.
What does the settlement accomplish?
It wasn't until last week that any city administration had agreed to a permanent order requiring the provision of shelter to families with no place else to go.
The families originally came to seek Legal Aid Society's help 25 years ago, and through all these years of litigation no administration would agree that the city had a permanent obligation to provide shelter to children and families. So homeless families with children whose rights were being violated have gone to court asking for help, and over the years the court provided a series of preliminary orders requiring the provision of shelter, specifying the kinds of shelter that must be provided, and specifying the eligibility process. But those were all preliminary orders that were always subject to the government coming in and saying that they shouldn't be made final, that they should be wiped away.
What the city agreed to is a final, enforceable right to shelter for families and children. This means that forevermore city government – regardless of who the mayor is or what the times are like – will not have the ability to say these are only preliminary orders, that there's no need for them anymore, that they can be wiped away.
The key point, the thing to emphasize, is that those rights are now final, permanent and enforceable. And that is a rather significant breakthrough.
What does the settlement look like?
The settlement essentially creates the legal framework that we'd been seeking all along: that there would be final orders in place requiring the provision of shelter, that there would be basic standards, and a compliance plan in order to make the right to habitable shelter real for flesh-and-blood children and families in need of assistance.
There are four main components to the settlement: 1) the right to shelter for homeless families with children; 2) the right to adequate shelter; 3) an implementation plan with a number of provisions (for example, one provision relates to specified steps the city must take to make sure eligible families get shelter and another specifies due process rights for families if they're denied shelter, or if the shelter rights are terminated); and 4) an agreement at the state level to provide priority and expedited hearings for families who are denied shelter and to apply the same rules in those hearings that the city has agreed to apply.
What does giving up judicial oversight mean for homeless families?
There's a misperception about what judicial oversight means. Judicial oversight occurs when a party—here, the government—violates a legal requirement. People sometimes confuse judicial oversight with the ability to go back to court to enforce orders. The only reason we returned to court in the past was when the basic preliminary orders requiring the provision of shelter or requiring the provision of basic decent shelter were violated, as they were in such a case as leaving families to sleep in an office. (For more on the judicial orders requiring improved care at the now-defunct Emergency Assistance Unit, see Judge Not, City Limits Magazine, Sept./Oct. 1999.)
With the settlement, homeless families improve their ability to enforce their legal rights. Before September 17, 2008 all homeless families with children had were a series of preliminary orders dating back to the 1980s requiring shelter and services. Now homeless families with children have a final, permanent, enforceable order requiring the city to provide shelter and to meet basic standards of habitability. They now have the ability to go into court without the threat that preliminary orders would be wiped away.
In the future, if this very important series of basic, final, enforceable orders are violated, then homeless families represented by the Legal Aid Society would certainly have the right to go to court to enforce the injunction. We run a hotline, we conduct outreach in shelters and intake offices. That's not going to stop. To the extent clients need our help, we'll provide that help. If there's a systemic problem, we'll certainly return to court, which could issue whatever remedies were needed rights that were won on behalf of children and families.
That said, it's in nobody's interest to have to return to court. It's not in the interest of homeless families or children to have to return to court because it only means that their rights are being violated. That's not a result we want. That's not a result our clients want.
Why was the settlement reached now, and what events preceded it?
The city had gone to the court in February 2006 and said we want to eliminate all these court orders. But eliminating court orders can't just be done by fiat; both parties have the right to contest it, which the plaintiffs—homeless children and their families—did. There was a schedule worked out for discovery and then a briefing schedule. The first phase of the briefing schedule was going to begin on September 15, when we had to demonstrate to the court why the preliminary orders that were issued in the 1980s should be made final and permanent. At that point the case was either going to be brought to a conclusion by the city wiping away core rights for children and families, rights that had been codified in preliminary court orders; or by a final court order that would exist forever to protect children and families.