Locked in a private but high-stakes mediation, the city and the Legal Aid Society spent five months working on a legal compromise that would reshape one of the most unique and far-reaching homelessness policies in the country: the right-to-shelter rule, which obligates New York City to provide shelter to anyone in need.
For homeless advocates, the hallmark of any deal would be to preserve the 40-year-old court mandate, the foundation of how New York City deals with its homeless population that’s been applied over the years to men, women and families regardless of national origin. But Friday’s settlement agreement establishes new rules for migrant adults who have arrived in the U.S. since March 2022. Several advocates, including the earliest architect of the right to shelter, said that’s a troubling concession.
“It’s a very high price to pay,” said Robert Hayes, the lawyer who brought the 1981 case, known as Callahan v. Carey, that resulted in a consent decree that established the right to shelter.
Both Mayor Eric Adams and Legal Aid have said the original right-to-shelter provision remains intact. But the new legal filing codifies the Adams administration’s current practice of limiting the initial shelter stay for migrant adults to 30 days — and gives city officials the right to deny shelter stay extensions to those who do not meet certain requirements. Migrants under the age of 23 will be permitted to stay in shelter for at least 60 days.
Hayes, who runs community healthcare clinics across the city, referred to the carveout for migrant adults as a “xenophobic underpinning of the agreement.”
“The mayor and the advocates have abandoned the principles of justice for all,” he added.
Migrant adults make up about 22% of the 65,000 total migrants currently in the shelter system, according to city officials. The agreement does not affect migrant families with children nor does it apply to those who are not migrants.
The Legal Aid Society, which acts as the court-appointed monitor of the city’s shelter system, said the agreement between the organization and the city staved off a potentially worse outcome that could have resulted in a complete overhaul of the right-to-shelter mandate.
Joshua Goldfein, a Legal Aid staff attorney who helped negotiate the settlement, told Gothamist that the city and state had early on threatened to vacate the court order.
“Which would have meant that no New Yorker, including both new arrivals and longer-term New Yorkers would have been protected by it going forward.”
But that has not tamped criticism over the settlement.
“The city and advocates think they won because Callahan is still intact for New Yorkers,” said Norman Siegel, a civil rights lawyer who has defended the homeless. “That is important but then comes the question — what about the migrants?”
Siegel criticized the fact that the state, which was a defendant along with the city in the Callahan case, was not a party to the agreement. Gov. Kathy Hochul has repeatedly said that the right to shelter does not apply statewide.
Advocates say the mandate derives from an article in the state constitution that states that “the aid, care, and support of the needy are public concerns and shall be provided by the state.”
“There is an illusion that the city and Legal Aid can figure out how to solve the problems [of homelessness],” Siegel said. “We need to speak in broader terms about how we address these issues. Because we haven’t succeeded in four decades in addressing these issues.”
A spokesperson with Hochul's office did not immediately respond to a request seeking comment.
On the social media platform X, the Safety Net Project of the Urban Justice Center described the settlement agreement as “a discriminatory and xenophobic move” that denies migrant adults “access to NY's constitutional right to shelter.”
In a phone interview, Marika Dias, an attorney who is the managing director of the Safety Net Project, said the settlement agreement effectively creates a “separate but unequal system” that is unavoidably tied to race.
“The people who we are talking about are predominantly Black and brown folks,” she said. “That needs to be part of the picture.”
Some legal advocates have also raised concerns over what they see as additional bureaucratic hurdles for migrants. The agreement stipulates that migrant adults must make “significant efforts” to move out of shelter during their initial stay. The court document lists 13 examples that include searching for employment, housing and enrolling in English classes.
“I’ve already seen through my many clients who have been subject to the 30-day rule already, that the 30-day rule leads to street homelessness,” said Deborah Berkman, an attorney at the New York Legal Assistance Group who has assisted migrants.
She said history has shown that people who are denied shelter are very likely to become part of the street homeless population.
“That does not help those clients and that does not help the city,” she added.
Anne Williams-Isom, the deputy mayor for health and human services, following a court appearance on the right to shelter mandate Friday.
Anne Williams-Isom, the deputy mayor of health and human services, told Gothamist that the migrant crisis had presented an unprecedented challenge for the city. Without sufficient federal intervention, she said New York was being forced to “triage” the requests for shelter.
“We didn't want to pit people against each other,” she said. “But I think one of the things that Legal Aid and the city agreed upon was that the needs of people are different.”
The legal settlement has put advocates in an unusual and uncomfortable position of having to question the decisions of Legal Aid, a group that has been charged over the years with defending and expanding the right to shelter.
Many of those interviewed by Gothamist said they wanted to be careful not to appear as if they were overtly criticizing Legal Aid, which has carried out a high-profile legal battle against the city and state amid growing political backlash to migrants.
Kim Hopper, a medical anthropologist at Columbia University who provided the research used as testimony in the Callahan case, said compromise has always been at the heart of the right to shelter.
“We tried to adhere as closely to the spirit of the right to shelter but have repeatedly been forced to give away at the edges,” he said. ”This has been the city’s process all along. How do you minimize responsibility? The check will be from the advocates and the lawyers.”
