housing crisis

‘It Was Imperfect by Definition’

Photo: Viviane Moos/Corbis via Getty Images

On September 12, 60 unhoused men arrived at an intake center on East 30th Street expecting a place to stay, only to learn there were no beds available in any of New York City’s shelters. In addition to those 60 men, according to the Legal Aid Society, others who had been processed and assigned a bed later returned to the intake center after being told the shelters were full. City officials, if they knew, did not immediately say where any of these men went or may have spent the night.

The already strained shelter system had been under even more stress since May, when conservative governors began sending an influx of hundreds and then thousands of asylum seekers from South and Central America to the city in a series of political stunts. Under New York’s succinctly named “right to shelter” policy, the city must provide shelter to anyone who seeks shelter on any given night — including those thousands of asylum seekers and the roughly 60,000 people who currently fill our temporary shelters. “It is now clear that this administration simply does not have a handle on the city’s sprawling homelessness crisis,” the Legal Aid Society said.

In his comments on the overcrowded shelters, Mayor Eric Adams seemed to imply the crisis stemmed from the right-to-shelter policy itself. “The city’s prior practices, which never contemplated the busing of thousands of people into New York City, must be reassessed,” he told reporters on September 14. It took only a few hours for a spokesperson to walk the statement back, saying, “We’re not trying to get rid of the right to shelter. Right to shelter is law.” A day later, another clarified the city was reassessing not its shelter policies but the “policies that developed around them.”

As this convoluted nest of comments suggests, the right to shelter is a complicated status quo. It’s not a law, actually, but a right dictated by court order — litigated over several decades and still at the center of debates over what the city should provide to people in need of housing. It was first established in 1981 after Callahan v. Carey, a lawsuit filed on behalf of homeless men who said the city must offer them shelter under protection of the New York State constitution. The case was argued by Robert Hayes, then a young attorney, with a group of advocates who would go on to form the Coalition for the Homeless.

We caught up with Hayes about his original vision for the right to shelter, its necessity and imperfections, and how renewed attention on it might advance the right to housing.

This interview has been condensed and edited for clarity and length.

What were you doing in 1979 before you filed the Callahan v. Carey lawsuit?

I was 25 years old and working at Sullivan & Cromwell, one of the most white-shoe law firms on Wall Street. The culture in the city then was that homelessness, to the extent it was acknowledged, was a choice that people were making to live on the streets. I was volunteering in the shelters, talking to the guys there. I knew some people at what was then called the Human Resources Administration, and there was zero interest in focusing on what was clearly a growing catastrophe.

Who was Robert Callahan? 

I met Bob at a place on Bleeker called the Holy Name Center for Homeless Men, where guys would go to pick up mail and get a shower. He was a one-time short-order cook who was drinking too much and never got that under control. He lived in my studio apartment from time to time. He was a good representative for the case in that he understood what he was doing; a lot of people think a lawyer’s gonna give them a lot of money, but Bob Callahan understood he was standing up for a principle.

How did you craft the legal argument — that shelter was a right enshrined in the New York State constitution? 

I went to NYU law school and in the library subbasement, I found the state constitution, written in 1937 at the height of the Depression. It simply said “the aid and support of the needy shall be a public concern.” The proponent of that provision and the constitution gave a lengthy speech talking about, Here we are in a Depression, and this is to be clear, no matter how hard times get in the future, we will always retain this fundamental relationship between the state and its people.

And the result of the lawsuit wasn’t a law or a policy but a consent decree.

Right, it is a series of court orders— which are tougher than laws really, because you’re in contempt of court if you disobey as opposed to getting sued for violating a statute. No serious elected official in New York can really challenge the essence of this right to shelter. The judge spent eight months mediating the settlement, which goes into all of these issues around space between beds, how every shelter resident is entitled to a lockable storage unit. I remember the fight over sheets. The city absolutely refused to set a limit on population, so I tried to do it indirectly by fighting for plumbing standards. There are intricate, detailed standards. Today, the right to shelter has become a kind of policy ethos of our city. It’s part of our culture. That’s why it took 15 minutes for the mayor’s people to walk back what he said about reassessing it.

This isn’t the first time it has been called into question or challenged, though. 

They fought us tooth and nail right away. The decree was signed in August of 1981. By October, surprise, it had gotten colder, and the city ran out of beds. We repeatedly had to go back to court to get the trial judge to separately order additional shelter beds be opened. Step two was when they started running out of beds for homeless women, which forced me to bring a case called Eldridge vs. Koch. By the mid-’80s, the family litigation, expanding right to shelter to include families sheltered together, went into overdrive. The worst was when Bloomberg tried to impose requirements on the right to shelter— to create a bureaucratic obstacle course, in which people would have to prove they had nowhere else to go. The decree is very simple: You don’t have to bring all of your documents to get to a shelter. You just have to be let in. That was the major threat because it wasn’t saying, “No right to shelter.” It was saying, “We’re entitled to put on bureaucratic requirements,” which would’ve diluted the right for the neediest of people.

The comments from Mayor Adams, that the right needed to be “revisited” in light of the busing happening from Texas, Arizona, and Florida — he’s essentially saying that a sudden increase in demand makes it untenable. Is there anything in the decree that limits who can access the right to shelter? 

There is not. That line of thought is not new, however. Adams has a particularly acute situation, but what if there was another Hurricane Sandy? We’re gonna have some climate catastrophe that’s going to create a similar need for an emergency plan to do emergency shelter.

What happened to Bob Callahan?

Mr. Callahan was found dead on Mott Street. He lived to see the preliminary injunction, not the consent decree.

The right to shelter is the result of a settlement. That’s an interesting way to think about it — not settled as in final but settled as in a kind of compromise.

Shelter is no solution. It’s a Band-Aid. We brought the right to shelter because I could not find a legal basis to bring a right to housing. We think of housing as a reasonably permanent, secure, safe abode. Where we can raise families and grow old. Shelter by design is to save lives from tonight’s weather and other dangers. Shelter should be temporary and short term. Without the complementary commitment to sufficient affordable and sometimes supportive housing, shelter becomes a long-term place to live. It was imperfect by definition, frankly. So we kept going upstream, trying to find ways to create something better than shelter. That was the vision, to build from the right to shelter.

And are we? How is the city doing on that front?  

Badly. I feel that weight every day. It’s depressing. On the other hand, how many people had some relief from misery because they had a bed for the night? And in the late ’80s, Callahan helped us argue — not as a matter of litigation but as policy analysis — to the Koch administration that putting capital dollars into abandoned housing in the South Bronx and East New York would be a hell of a lot cheaper than keeping people in shelters. That became the so-called interim housing renovation program, and Koch would later brag to me that it was one of the most important things he did in office. I was too nice to remind him that he fought like hell against it. But he was right — it was a great improvement in the housing stock.

That now needs around $40 billion in investment.

Right. The perennial debate is — does the right to shelter actually help subvert what people really need? Does it kick the housing can down the road? Does it hide a problem? Yeah, it does. But what’s the cost of not doing that?

‘It Was Imperfect by Definition’