Posted on February 1, 2024 On January 31, 2024, Columbia University Professor and Coalition co-founder Kim Hopper PhD delivered a keynote speech at the January 31, 2024 UPSTREAM: Frontline Solutions to Homelessness symposium. These are his remarks. I’ve been asked to say a few words about the legacy of the 1981 Callahan Consent Decree, and will do so as both participant and observer, which is to say as home-grown anthropologist of record. Though I’ll talk mainly about the legacy, I’ll touch on its prospects, while leaving the heavy lifting on that topic to the panelists in the next segments of the program. My remarks apply in principle to the entire covered class, but I have worked primarily with homeless (and, more recently, incarcerated) men. By way of bias, my perspective has been shaped by a decades-long engagement with that asymmetrical form of civil dispute known as movement lawyering – specifically, the class-action lawsuit that led to the Callahan Decree and the advocacy that to this day monitors implementation under the aegis of the Coalition for the Homeless and Legal Aid Society. I also teach in schools of public health and law and owe a great deal to exchanges over the years with colleagues and students. Let me begin on a cautionary note:[1] Street- and empty lot “encampments” have become familiar presences in cities across the country in the last decade, especially in the west. No place, according to a recent assessment, appears to have arrived as a satisfactory translation for “clearance, closure and support.”[2] At least 5 cities have agreed to “sanction” some encampments as allowable forms of alternative housing, including one on the grounds of a V.A. hospital.[3] Relatedly, in 2018, in a landmark ruling in Martin v. Boise, a federal court ruled that arresting homeless people for camping outdoors when no other shelter was practically available amounted to “cruel and unusual punishment” under the Eighth Amendment. Since that time, dozens of actions have been filed on behalf of street-dwelling homeless plaintiffs, in at least 13 states, citing Martin as precedent. (The issue may soon be before the Supreme Court.) Tellingly, none was in New York.[4] This conference is all about why. With respect to the consent decree itself, I was (as they say) present at the creation. But I wouldn’t get too excited about that. When the case went to trial early in 1981, as a fledgling graduate student I was certified by the court as an expert witness for the plaintiffs because I had spent a year mucking about the Bowery and its environs, getting to know the landscape and denizens.[5] My testimony went swimmingly well under direct questioning by plaintiff’s counsel, Robert Hayes, only to be surgically vivisected under cross-examination by opposing counsel, who also shredded my scholarly credentials. But by that point, it didn’t really matter. The nightly mad scramble for beds, the casual cruelty of shelter security, the reeking squalor of the overflow space in the “Big Room” on E. 3rd St. – all of this was on the record. The plain fact was that we knew the “shelter care system for men” far better than the lawyers and experts mustered by Corp Counsel and the Attorney General to defend it. (It wasn’t long, for example, before the presiding judge was referring to conditions there as “Hogarthian.”) Nor was it certain at the outset that the public authorities were taking this challenge seriously; their initial response had been dismissive. They simply claimed that the shelter operation was “non-justiceable,” that is, outside the warrant of the judiciary, best left to administrative judgment and discretion. In retrospect, that opening gambit signaled something telling about the City’s stance. Having recently survived a crippling fiscal crisis, officials misread the public’s tolerance for this long-unchallenged, dead-of-night regime of bare-bones austerity and routine refusal. But once the dirty work of what passed for shelter was brought to light, it had to be accounted for. Brushing past this step, simply refusing to countenance it, the City badly under-estimated both the weakness of its own case and the temper of the court. This reluctant participant posture lasted throughout the trial. In the end, despite having been a full participant in standard adversarial protocols that produced the negotiated settlement, it never reconciled itself to the formal commitment made that summer. Just three months later, it tried to walk it back when it became clear that the court was serious about enforcing it.[6] The long arm of court monitoring is necessary for the simple reason that the City defendants have not credibly accepted that “aid, care and support for the needy are public concerns and shall be provided by the state and . . . its subdivisions . . .”[7] – the provision in the State Constitution relied upon by plaintiffs. Commitment remains conditional, compliance grudging, and third party oversight therefore essential. A few instances from that history may suffice to show why advocates continue to find suspect any assurance of trustworthy stewardship on behalf of City Hall:[8] Dissembling: In an affidavit filed in response to the original complaint in 1979, the then superintendent of the Men’s Shelter claimed that he was under no budgetary constraints at all, that in practice “all applicants can be given available services.” Judge Tyler saw through the subterfuge – what men are refused are services that are no longer available because they have been depleted – and ordered the City to come up with an additional 750 beds. (At that time equal to 2/3 of the total beds available through flophouses.) Disingenuity: In an early hearing on non-compliance with the terms of the degree – specifically, insufficient beds to ensure that applicants got a decent sleep once transportation was factored in – the exasperated attorney from Corp Counsel admonished the court that the consent decree wasn’t “carved in stone.” “Neither,” a visibly peeved Judge Wallach responded, “was it written in water, counsel.” Mischief: Halfway through the 4 decades of its operation, the City devised a back-door means to undercut the right to shelter. It simply began to eject men who failed to follow the rules. Never mind that in nearly every instance in which these alleged failures were contested by Legal Aid in administrative hearings, they were found to be groundless. It took a formal proceeding before Judge Sklar and a tartly worded opinion before the City relented.[9] Minimization: In what surely counts as an imperishable moment of managerial hubris, minutes before his speech at the gala kick-off event for his vaunted 10-year plan to end homelessness in New York, the Mayor calmly informed his aides that – since term limits restricted him to 8 years at best – they would have to do this in 5 years, not 10. It proved a bit too ambitious. Retrofitted alliance: Most brazen, perhaps, were the assurances given to Hayes by a former HRA commissioner and a Corp Counsel during a law school seminar in 2005(?) that they were all – really, when it comes down to the long arc of history – “on the same side, just using different means.” Hayes didn’t buy it.[10] Conscripting friends and family: Most galling (if only because it mimicked a stratagem deployed during the Great Depression), in 2011 the City sought to require each homeless application for shelter to inventory all the places and people who had informally put them up during the prior year. Those kind souls would then be contacted by shelter workers to see if they could take back the applicant for some time – could provide in effect what the City was supposed to provide – even if that corporal act of mercy violated the terms of the good samaritan’s own lease. The City Council refused to endorse. I rehearse these shenanigans not to embarrass any relevant officials – few of whom, at any rate, are still around to take offense; nor to mount yet another poison pen allegation of bad faith on the part of public authorities, although I believe such a claim would be, as the lawyers say, “colorable.” Rather, I’m trying to make a case for the necessity of what I earlier referred to as asymmetric civil action: the differential leverage that the law and lawyers offer to plaintiffs whose grievances would otherwise all too easily be ignored or dismissed in the scrum of competing interests and binding liabilities. The consent decree holds authorities to a commitment in principle even as the embedding environment itself undergoes seismic changes, even as unforeseen challenges (like COVID) require operational adjustment and improvisation in order to comply, and even as unprecedented levels of rent burden render more and more households vulnerable. Advocates and attorneys did not, as is sometimes claimed, create the problem of modern homelessness; they simply made it visible, gave it a name, and created a mechanism by means of which it could come safely in from the cold and out of the shadows. This was no mean achievement. But neither, I would suggest, was it anything to crow about. It’s a shotgun marriage far stranger and more precious than that. The philosopher Agnes Callard has recently dissected what she calls the paradox of apology.[11] In her hands, this commonplace event becomes an unscripted and unforced performance of avowed fault, genuine regret, meaningful reparation, and commitment to corrective action in the future.[12] I can’t do justice to her argument here. But for my purposes, something similar applies to the prodigy of contested governance – the roundelay of writs, affidavits, arguments and rulings; the clamber to repurpose unlikely venues into serviceable use; the dust-ups with neighborhood opposition – that has indemnified the right to shelter since its inception and ensured a baseline of survival like nowhere else in this country. In practice, the right to shelter is an unlovely beast: makeshift, provisional, at times reluctant – and so, if we’re honest about it, not a little shabby. Defending it can too easily degrade our moral imagination to the stripped-down dimensions of the thing it is supposed to remedy. We all agree: it is no solution to homelessness.[13] At best, it’s emergency respite, a patchwork holding action, that by one recent estimate has provided shelter to over a million New Yorkers since first established.[14] In these respects, it is decidedly unlike its upscale relative: the right to housing. Ambitious, noble, dignity-affirming and substantial; much loved by UN Special Rapporteurs, International Treaty architects, Harvard Law Review,[15] and a few daring state legislatures: the right to housing even has its own cool (and coyly accommodating) adjective: “aspirational.”[16] The right to shelter is none of those things. Instead of la-la-land aspiration, it insists on in-your-face obligation, in place of lofty promise it demands gritty duty. It’s real, imperfect, easily mocked and reliably problematic. And yet, and yet: since 1981, New York City has defiantly embodied the distinction of being the only jurisdiction in the U.S. with this court-endorsed surety – and not, to say it once more, as aspiration but as obligation. The alternative? Recall those earlier remarks on present-day street encampments. The stakes, to put it in the crudest public health metrics as possible, are mortal. To mention just a few: 227 street deaths in Sacramento in 2023; 758 in Maricopa Co. (AZ); an average of 5 per day in Los Angeles County. Nationwide mortality monitoring is so poor that the National Health Care for the Homeless estimated that the pre-COVID range was between 5,800 and 46,500 deaths. Even so, recorded deaths rose by 77% between 2016 and 2020.[17] What brings me to the heart of the matter. The latest report from the Coalition puts it plainly: “It is time to decide what kind of city we are” (State of the Homeless 2023). But that verb tense seems off: our history attests to who and what we are. Yes, advocates are asking the City (and State) to do the impossible, to commit to what in a late capitalist world is the small miracle of the common good, and to do so with a modicum of decency, even dignity. And yes, they are expecting the City to fail in that effort. But if the record of the last 40 years has taught us anything, it is that we can learn from those failures, that (to steal a phrase from Beckett), if we fail again we can still fail better, and save lives in the bargain. The distinctive twist to Callahan’s legacy, then, might be this: hedged by the requisite cautions of humility and gratitude, with respect to shelter, New York alone has earned the distinction of failing better proudly. Thank you. Kim Hopper [1] Thanks to Columbia law student Anthony Palacio for research on the civil suits summarized in this paragraph, and to law professor Maria Foscarinis for extensive discussion re background and implications of the case. See also this recent press account.[2] Abt Associates, 2021.[3] Finkes 2019; Przybylinski 2023;Olson & Pauly 2023; Jones et al. 2015; Cohen et al. 2020; McCoy et al 2023.[4] Note re our own version of street sweeps – ill-fated Adams initiative: between March and November 2022, intensified streets sweeps displaced 2308 people living in over a thousand street sites (on sidewalks, in loading bays, under bridges, in parks, etc.). According to a City Comptroller’s audit in January 2023, 43 wound up in shelters, 3 in permanent housing. (Bloomberg News 6/28/2023)[5] At that time, too, Ellen Baxter and I were the only ones doing field-based research on the issue. Ann-Marie Rousseau was compiling a photo-journalistic account of homeless women, and the Vera Institute had done some administrative record research of the Men’s Shelter clientele.[6] The City signed, a deputy HRA commissioner told a reporter at the time, because “there was the widespread thought if the city were to test this we would lose” (NYT 8/27/81).[7] The wording of the relevant section of the New York State Constitution relied upon by plaintiffs.[8] A more complete inventory is available from the Coalition for the Homeless, HERE.[9] The operative detail from the degree on eligibility: “by reason of mental, physical or social dysfunction,” that last category being strategically elastic. Here is Judge Sklar’s usage: Making offhand reference to the “same chronic, difficult-to-assess, and tough-to-remedy conditions” that continue to plague the homeless plaintiffs,” [the relevant affidavit] simply asserts that the term “social dysfunction” was “intended [‘invented’?] to ensure that such dysfunctional persons could not only gain access to safety-net shelter, but hold onto it . . .”[10] See, for the record, that same official’s comment at the time the Decree was signed, supra note 6. [11] The Point, 1/9/24. See also the model reparation – composed of three parts: acknowledgment, redress and closure – explored in From Here to Equality (Darity and Mullen 2020). For a more prosaic version of unexpected concord in the judicial arena, see C. Sunstein’s argument for incompletely theorized agreements: “The distinctive feature of this account is that it emphasizes agreement on (relative) particulars [like beds adequate to the demand] rather than on (relative) abstractions [like a formal ‘right to shelter”]. This is an important source of social stability and an important way for diverse people to demonstrate mutual respect . . . Harvard Law Review, Vol. 108, No. 7, p. 1733, 1995[12] In particular, I’m not doing justice to the cartwheels of position and perspective this requires in her accounting. A different image: that of “eccentric” rock formations left in the wake of receding glaciers.[13] It is no small irony that the year the Consent Degree was negotiated (1981) was the same year that the St. Francis Residence ushered in a new era in supported housing.[14] See Coalition for the Homeless, https://www.coalitionforthehomeless.org/cfth40/[15] Eds. The right to affordable housing (135 Har. L. Rev. 1104, Feb. 1, 2022).[16] This allows for a great of latitude in compliance: “In reality, the right to housing may remain unrealised despite a wealth of legislative and executive initiatives. . . The right to housing is affirmed and made apolitical, yet homelessness and material disparity in living conditions are allowed to continue on, in their own way, as inequalities and deprivations” (Hohmann, The Right to Housing 2013: 133, emph. mine). For a more mixed assessment of the productive power of that discrepancy, see Depoorter and Tontrup (Aspirational laws in action. Law and Social Inquiry, online, 11/06/23. “On the one hand, aspirational laws can create unforeseen social frictions when rights are declared, but their implementation and enforcement are ineffective. On the other hand, aspirational laws may also have self-fulfilling potential. Due to the adverse experience of rule breaking, rights holders may seek enforcement and compliance even if the law fails to influence public beliefs.”[17] Sacramento Bee 1/24/24; Associated Press, Phoenix, 12/23/23; New York Times 6/22/23; The Guardian 2/7/22. IN FY 2022, NYC registered a total of 685 deaths, but only a quarter of those occurred among the street-dwelling homeless poor (State of the Homeless 2023: 40). Photo source: City & State New York – UPSTREAM 2024 Frontlines Solutions to Homelessness
