Is shelter an inalienable right?
It’s in the Universal Declaration of Human Rights, but in the United States, to varying degrees, only three places in America guarantee the most vulnerable a warm place to sleep: Washington, D.C., Massachusetts, and New York City—which is closing in on the 40th anniversary of the court decision that forces City Hall to provide temporary homes to those who say the streets are their only alternative.
In the meantime, the city has been notching another milestone: homelessness is at record levels, with about 60,000 adults and children living in its shelters.
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Advocates call the court mandates “right to shelter.” It’s widely seen as settled law, and over the decades, City Hall has provided some degree of comfort to thousands of men, women and children in New York, at a price of billions of dollars.
But what some see as a moral imperative, others see as a disincentive for self-sufficiency—and, what’s more, something that could potentially be taken away.
“When you talk about a right to shelter—there’s never been a point in New York, where the courts stepped forward and said unambiguously, ‘Yes there is a right to shelter in New York State,” says Thomas Main, author of “Homelessness in New York City: Policymaking from Koch to de Blasio.”
Main adds: “It’s a practical impossibility for the City to say every family that is distressed in housing is going to be taken care of in the shelter system.”
The backdrop to this is that affordable housing remains out of reach for many in the nation’s largest city. Mayor Bill de Blasio is facing pressure to somehow lower shelter numbers without pushing people onto the streets, especially before voters decide if he should be re-elected in November. Some have argued that the city should tighten eligibility requirements, and be more aggressive at relocating people out of the city.
Although the mayor’s budget is strangely unresponsive on this matter, there’s also fear that a Republican Congress and the Trump administration will slash funding for affordable housing, prompting hard choices about where to best spend taxpayer money for the neediest.
And there’s also a chance that the very law seen as guaranteeing shelter could be revoked.
It’s a remote possibility, but possible nonetheless. In a barely-noticed curiosity of state law, New Yorkers are asked something in November they consider only once every 20 years: if they want a convention to amend the state constitution.
It’s one such amendment, passed during the Great Depression, that forms the basis to the city’s right to shelter policies. But that amendment is more ambiguous than some many think. There is no “right to shelter” written per se in the State Constitution; the relevant line is: “The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions…”
It may add up to new urgency for society to re-ask that question: Is shelter for all a moral responsibility?
To the man in charge of providing that shelter, the answer is a clear yes. But if Steven Banks decides to blame anyone for some of today’s headaches, he can look in the mirror.
Then a hotshot young Legal Aid attorney in 1983, Banks sued Ed Koch’s administration, arguing the constitution required the city provide shelter for homeless families with children. (Previous court decisions applied to men and women). It wasn’t settled until a quarter-century later, with Mike Bloomberg in City Hall and the city finally agreeing to a family’s right to shelter and to provide certain care standards.
Under Bloomberg’s successor, de Blasio, Banks took a top post implementing the very policy he once sued for. He reports no regrets, despite the barrage of bad headlines, threats, and even nighttime protests at his house.
“If you don’t learn the lessons of history, you are doomed to repeat the mistakes,” Banks said in an interview with The Daily Beast, repeatedly arguing that without the legal battles, New York’s homeless would be more like Los Angeles’—living on the streets, not in shelters.
Officially the Commissioner of the city’s Human Resources Administration/Department of Social Services, Banks carries a number of portfolios.
The first is implementing the shelter guarantee for a stubbornly high shelter population, that are often crime-ridden, as my NY1 colleague Courtney Gross has documented. When shelters aren’t available, the city has frequently turned to alternatives: “cluster” apartments, where two little girls were killed by a faulty radiator in December; or hotel rooms, which cost taxpayers more than half a million dollars a day as late February, according to City Comptroller Scott Stringer.
Banks is now aiming to methodically chip away at the number of those needing a shelter bed in the first place, through housing assistance like vouchers and lawyers to fight evictions along with a vast citywide affordable housing program.
“In order to address homelessness in New York City, it requires a combination of prevention, decent shelter, and permanent housing resources. The balance of these approaches has been out of whack,” Banks says.
“We’ve adopted a prevention first-strategy because over decades, the provision of shelter has been a default response to the court orders as opposed to a last resort when all else fails.”
Still, he predicts only a modest drop in the shelter population—2,500 over five years, reasoning that with harmful policies in place before de Blasio took office, the increase in the shelter population would have been far higher if not for the measures already taken.
Banks is also something of a political lifeline for the Mayor (who is also a former rival for a Park Slope City Council seat; de Blasio won). So far, de Blasio’s bid for a second term is attracting weak rivals, with others opting out after prosecutors declined to bring charges against de Blasio amid pay-to-play allegations.
Still, the homeless crisis remains a significant political liability—not just the high numbers, but his plan to open 90 new shelters. (One overlooked caveat is that the city also plans to continue to get out of 360 clusters and commercial hotels). De Blasio’s plans for homelessness have been stop-and-go, and his first commissioner resigned in 2015.
Banks is one of those rare government officials who still seems energized, despite responsibility for an especially Sisyphean, and depressing, bureaucratic churn. During our interview, Banks, who considered becoming a rabbi, points to his religious upbringing as motivation.
“I went to the Legal Aid Society and I went to city government with a strong religious background, in which I was brought up to believe in helping those who are less fortunate, and in need of help.”
Critics of a guaranteed right to shelter are a scattered bunch, often maligned as heartless, unfairly in my opinion. Bloomberg lamented it, arguing in 2013 that even fellow private jet owners could “take a private limousine and go straight to the shelter system and walk in the door and we’ve got to give you shelter.” He tried to impose stiffer shelter intake policies, to nudge people to stay with friends and family. Banks and the City Council sued; the city lost.
Today, apart from op-ed writers, one of the more thoughtful skeptics of right to shelter is Kevin Corinth, who studies poverty at the American Enterprise Institute, first becoming interested in the idea while talking with homeless people there as a graduate student in Chicago.
Not an absolutist, Corinth thinks children have a right to shelter, but says the guarantee may be providing an perverse incentive to enter the shelter system, when greater self-sufficiency—or at least less dependency on government—is another option.
“I think that there is a perception that people who favor free markets or limited government are materialistic—sort of a reverse Robin Hood,” Corinth said in an interview.
He points to a 2014 Institute report showing that the three places guaranteeing shelter has seen had seen a 40-percent increase in family homelessness over the previous three years amid a national 8-percent decrease.
There are eligibility requirements that have to be met before being allowed to stay in shelters. Still, anecdotally at least, some enter a shelter, or linger there, when other options are available. Those in New York’s system also stay far longer than in other parts of the country, with the average stay nationally about two weeks—while in the city, families stay for an average of about a year and single adults about a year and a half, according to one expert and a city spokeswoman.
But there’s no real proof that the right to shelter broadly discourages people here from finding a bed with friends or family, or encourages people elsewhere to come here in the first place.
Gaming the system may be a factor on the margins, but an expert says the steep price of affordable housing and the end of a crucial subsidy in 2011 are seen as driving up the numbers of the city’s homeless.
Dan O’Flaherty of Columbia, who studies urban economics, writes in an email he knows of no “serious research on right to shelter.”
O’Flaherty also shot down talk that giving housing subsidies to those who have been in shelters incentivizes people to claim to be homeless.
“The urban legend—the perverse incentive—is absolutely false,” he says.
As for people moving to New York because they know they can get a bed, O’Flaherty notes that there are a lot of homeless people in nearby Newark, New Jersey. And, he says, the turnstiles for the trains across the Hudson River can be easily hopped.
The upshot to all this: in the absence of compelling data indicating the “right to shelter” laws have overwhelmingly increased homelessness, it’s highly unlikely City Hall will end it.
Nor, arguably, should it.
Stiff eligibility requirements to root out fraud are in order. Still, after a fitful beginning, de Blasio’s plan for the homeless may just be taking flight—especially a robust plan for affordable housing. It’s unfortunate that it comes just as Washington is poised to cut off even more funding for a city that, according to the Partnership for New York City, already sends $56 billion more to the federal treasury than it receives.
