After 25 years of sparring in courts, New York City and advocates for the homeless reached a historic settlement this month to enshrine the right to shelter for homeless families. The settlement ends a complex patchwork of judicial decrees sought by advocates over the years to require that the city provides families with safe, habitable shelter. In the settlement the city has pledged, for the first time, to put in place a formal system that meets these requirements. In return, city agencies, rather than courts, will now determine how family shelters are run.

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.

In 2003, both parties agreed to establish a three-person panel comprised of two advocates and a lawyer to look at the court orders and recommend a way forward. Did this panel influence the final settlement?

We agreed to a panel—a combination of a lawyer and two non-lawyers—in the hope that the panel would help the city develop a plan to come into compliance with the court orders we had won. [Note: The panel was established at an impasse in negotiations, at a point when the Bloomberg administration threatened to remove families who did not actively look for apartments from the shelter system and temporarily place kids in foster care.] The panel worked very hard to forge a settlement, but a settlement didn't occur.

Then the panel issued a recommendation to the court that said in their view the litigation should simply end. The problem with this was that two non-lawyers and a lawyer made a recommendation to the court that was not legally permissible. It was a legal impossibility for the court to end the court orders by fiat without an agreement between the city and the plaintiffs or a trial. The city filed a motion but never submitted it. Even the city conceded that litigation could only end by either a settlement or a trial.

This recommendation that had no legal force, I think, created a public platform to attack the judiciary—attacking the court for failing to act on what was not a legally permissible recommendation. I think this really threatened the kind of judicial independence that has been so important for homeless New Yorkers—to have judges that have been willing to apply the law even when the application of the law required government to do more than it was willing to do. The court was subjected to significant, and in my view, inappropriate attacks for failing to decide a motion that hadn't even been submitted to the court.
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In a recent report, the Independent Budget Office found that the number of homeless families have increased 15 percent in the last two years in spite of large increases in spending. What does the settlement say about the current administration's approach?

I think it's important to understand that this settlement isn't a referendum on whether the city is doing a good job or not. It's a legal framework to protect children and families at any time in the future if their rights are being violated. I credit the city for agreeing to the final, permanent, enforceable orders ensuring the right to shelter and adequate shelter.

We're clearly in very hard times in the city, and homeless families need help now more than ever. In light of this it was particularly important to forge a permanent and enforceable order to protect children and families against the possible loss of critically needed services and assistance. As a result of the agreement, one decision that the city can't make, no matter who the mayor, is to wipe away these obligations.

The Coalition for the Homeless, among others, has suggested that shortages in affordable housing and the mayor's reluctance to use Section 8 vouchers to get families out of shelters have accounted for these trends. How do Bloomberg policies impact the possible effectiveness of the plan laid out in the settlement?

I give the administration credit for setting a goal to substantially reduce the numbers of homeless New Yorkers. It's an important step forward for city government, as long as it's done lawfully and not by removing people from shelter who have no place else to go.

But I differ with the administration in a couple key areas. One issue I hope the state will confront is the idea of sanctioning families or single adults by terminating or denying shelter under certain circumstances. These policies are grounded in state regulations and directives that came from the Pataki administration that the Bloomberg administration has implemented as the agent of the state's social services agency. I understand that the Governor [Paterson] has tasked central staff to look at all regulations of all agencies. We're hopeful that the state will re-evaluate the shelter denial and shelter termination regulations and provide some redress for children and families in the city by doing so.

Another piece that's critical is the mayor's decision made in 2004 to eliminate priority for New York City Housing Authority and Section 8 rental subsidies. This has made the goal of reducing the size of the family shelter system extremely difficult, if not impossible. At the beginning of the Bloomberg administration, in excess of 7,000 families with children were being relocated to permanent housing annually. Now it's been more in the neighborhood of about 5,000 a year. There are now fewer options to re-house homeless children and families. That gap has serious consequences for meeting the very important goal of reducing the size of the shelter system for families.

I hope the administration also looks at its cuts to anti-eviction legal services. With a goal of trying to reduce the family shelter census, which is an important goal, and also record numbers of families seeking shelter, it seems like the need for anti-eviction legal services is more critical now than ever. I hope the administration will re-evaluate and change their policies, because cuts like these—especially in these difficult times—will have an adverse impact on the city's ability to comply with recently agreed-to court orders.

We remain hopeful that the historic breakthrough settlement of last week will make a difference in the lives of children and families who are homeless and need help from the city. But I think, as we've made clear, if there are violations our role is to enforce those final judgments obtained last week to protect children and families from harm.

It's been suggested in various places that the elevation of Justice Helen Freedman – who had jurisdiction over the case for years, and was generally seen as sympathetic – from the Supreme Court to appellate court over the summer had some indirect impact. Can you speak to that?

From a plaintiff's perspective, it didn't have an impact, because our papers were going to have to be filed under a deadline that Justice Freedman had set. And the city wanted to eliminate the preliminary orders, and the plaintiffs wanted to make those orders final, and the litigation was going to come to a conclusion through either of those requests. The litigation would have been concluded had Justice Freedman heard the case—it could have been concluded with Justice Freedman agreeing with the city that the orders should have been all eliminated, and homeless families would be left with no court-ordered protections; or the litigation could have been concluded with a final enforceable order—those were really the only potential outcomes before Justice Freedman.

Sometimes Justice Freedman found against the plaintiffs, sometimes Justice Freedman found against the city. What's important to remember is that no matter who she found for, she was always upheld on appeal.

What impact does this settlement have on the work of the Legal Aid Society?

I think the litigation demonstrates that our legal representation can make a difference in the lives of our clients and it highlights the importance of the organization in the life of the city. The Legal Aid Society has been part of the city's social fabric since 1876. We have major litigation pending against the city and the state and we always will, because that's what our role is: to represent vulnerable New Yorkers when government—no matter what the level—or private parties harm them and don't act lawfully.

There's been a lot of focus on this litigation, but every year we provide services for 295,000 matters with a staff of 1,450 employees, including 850 lawyers. It's a staggering caseload, but the need for our services is so staggering. This case stands for the proposition that we can make a difference for clients in big cases, but every day our lawyers make a big difference in courts, in hearings, and in community settings for clients for whom the impact is every bit as great on an individual basis as this lawsuit.

I understand you recently talked to Yvonne McCain, who originally brought the suit against the city in 1983. What impact has this news had on her?

Resolving the litigation that she brought 25 years ago was something that we had talked about. We represent real-life people. McCain against Koch, McCain against Dinkins, McCain against Giuliani, McCain against Bloomberg, was not brought by the Legal Aid Society, it was brought by Yvonne McCain and a number of other families with children who said that their kids and their families should be treated better than they were being treated. She went to the city to get help, and the city at that time said: "We don't provide that kind of help. Why don't you move in with your mother?" The case was brought in her name because, like so many families with children we represented, she came to us and said, "My children and my family are being treated unfairly. We're being harmed. I think there's something wrong with this. Can you help us?" And our role was to help her.

I think it's always been a source of pride for her that she stood up to the city and said the city should do better for homeless children and their families. What she did on behalf of homeless families and children will always be her legacy.

- Matt Schwarzfeld