On Friday, after months of closed-door mediation and negotiations to modify New York City’s right to shelter, the Legal Aid Society, Coalition for the Homeless, and city officials emerged with a deal. Effective immediately, court-approved amendments to the 1981 Callahan consent decree allow the city to deny a shelter bed to most single adult migrants after they have stayed for 30 days. The settlement does not affect families with children, who are governed by a separate legal agreement.

Ten months after the city legal department applied to modify the Callahan decree, which requires the city to provide immediate shelter to single homeless adults on demand, Mayor Eric Adams can tout Friday’s settlement as a win. But given the difficulty of implementing parts of the agreement and the potential legal backlash, the new rules will not solve New York’s migrant crisis.

The updated decree, a temporary measure that lasts only 45 days after the mayor ends the city’s state of emergency, is the biggest change to New York’s shelter system in years and comes at a time of escalating chaos. Before last week’s settlement, city policy allowed single migrant adults to reapply for another 30-day stay at a “respite center” in the East Village after their first 30-day stay expired. The subsequent volume of placement-seeking migrants prompted the city to operate waiting rooms, or “overflow sites,” where migrants have slept in chairs or on the floor.

The settlement permits the city to stop providing more than one shelter stay for “Single Adult New Arrivals,” whom the court defines as individuals over 18 who don’t share a household with anyone under 21, arrived from another country to New York City on or after March 15, 2022, “are afraid to return to their home country, and are seeking shelter from the City.” The new agreement also permits the city to deny migrants over age 23 shelter placements after 30 days, and migrants between 18 and 23 years old placements after 60 days.

The updated decree also establishes a need-based eligibility process for new arrivals, which migrants must cooperate with to obtain shelter. According to the agreement, the city may refuse placement to those with available housing options or “sufficient income or other resources to secure housing accommodations,” as long as it offers to transport migrants to such alternatives as the homes of friends, family, or immigration sponsors. This is significant, because it represents the first eligibility process for single adults in New York City shelters. The Bloomberg administration’s attempts to introduce a similar process for single homeless adults were subject to years of litigation and were ultimately unsuccessful.

While the agreement provides welcome flexibility for the city, it includes potential loopholes and could enable activist litigation. The updated decree allows applicants who can establish a medical disability or “extenuating circumstance,” for example, to extend their shelter stays beyond the allotted times. While the settlement’s appendix includes a noncomprehensive list of these circumstances, such as an applicant’s having a serious medical procedure scheduled within 30 days following a placement end date or having “made significant efforts to resettle,” some officials may use this section’s vagueness to provide longer shelter stays. The agreement also enables the Coalition for the Homeless and Legal Aid Society to move to modify or set aside the settlement because the migrant crisis has abated enough, even if the mayor hasn’t lifted the emergency executive order—potentially undermining the agreement’s long-term impact on the city’s migrant crisis.

The decree also raises old and new questions about the constitutional basis of New York’s legal right to shelter.

The 1979 Callahan complaint and decision grounded New York’s right to shelter in Article 17, Section 1 of the New York State Constitution, which refers to the “aid, care and support of the needy.” Courts have interpreted this section as authorizing the state legislature to determine who qualifies as “needy” and what public assistance to give them.

The constitutional text does not distinguish between citizens and noncitizens, and neither the Court of Appeals nor the state legislature has defined the scope and extent of the right to shelter. Before the settlement, the city extended this right to all single adults who applied for it, regardless of immigration status. Now, the terms of the settlement do not require the city to extend shelter beyond 30 days to most individuals who are “new arrivals,” that is, from another country.

The Coalition for the Homeless and Legal Aid Society claim that the agreement does not weaken New York’s right to shelter. A joint press release from the two groups asserts that the new “agreement preserves the underlying 1981 Right to Shelter consent decree” and has not modified the “underlying Right to Shelter consent decree.”

Whether that proves true in practice will depend on how the agreement is enforced. For example, consider the case of a single adult male migrant who shows up to the homeless men’s intake center and applies for shelter there, seeking to bypass the migrant shelter system. If the city denies the migrant placement on the grounds that he is a new arrival, that would indicate the recent settlement has, in fact, affected the underlying Callahan decree. However, if the city places him in the general homeless system, which is distinct from New York’s migrant-shelter system, and affords him the same right-to-shelter as non-migrants, that would indicate that the settlement has not changed the right to shelter in practice.

And even if the updated decree is initially interpreted to limit migrants’ shelter rights, further litigation could weaken the agreement’s impact. Single adult migrants denied shelter placements could, for example, sue New York for illegally depriving them of their right to shelter without due process of law.

Those now denied placement for being new arrivals might also sue the city for an equal-protection violation. Indeed, since state and local alienage classifications are generally subject to strict-scrutiny review, such a lawsuit could doom New York’s classifying the plaintiff as a new arrival. Such a court reversal would be in keeping with previous efforts to extend Callahan’s application beyond that envisioned by its text. The 1981 decree, for example, did not cover single adult women, but the Appellate Division of the Supreme Court of New York changed the decree after a successful equal-protection challenge in 1983.

This potential lawfare campaign is empowered by the consent decree’s failure to establish whether New York’s right to shelter extends city- or statewide—an area of disagreement between Governor Kathy Hochul and Adams. The governor might fear that signing the revised consent decree could further involve the state in the city’s longstanding right-to-shelter dispute.

Beyond these ambiguities, the agreement’s most consequential flaw is its failure to modify shelter requirements for families with children. Per the Adams administration’s latest report to the city council, in late February, 46,407 of the 64,404 total migrants in city shelters belonged to families with children—a 72 percent share.

Since the agreement doesn’t change the city’s current policy of letting immigrant families with children stay in shelters 60 days and renew 60-day placements, the cost savings associated with the updated decree could be lessened. Families in general are more expensive— the city’s homeless-shelter system currently spends an average of $145.13 per diem for each single adult and $232.40 for a family with children (often, a single mother with at least one child), and gives families (unlike single adults, who can be placed in congregate settings) their own rooms, usually in hotels, for security and privacy reasons.

Migrant families’ daily-cost figures are less clear, though they seem to fit a similar pattern. On average, New York City spends around $388 daily per migrant household in its shelters. Earlier this month, the comptroller’s office found that the Department of Homeless Services’ daily cost, including rent, for a group of newly contracted emergency hotels for migrants was $184 for single adults and $339 for families with children. Even if these hotels aren’t representative, they suggest the difference in costs for single migrants and families roughly tracks that of the homeless system.

New York City’s shelter system remains deeply flawed even with the new agreement. Guaranteeing even 30-day stays to single adult migrants, as the new guidance does, encourages migrants to move to the city. As the Coalition and Legal Aid have made clear, Friday’s temporary settlement substantially retains those incentives.

While the Adams administration’s newfound breathing room may make it less likely to challenge the constitutional basis of the city’s right to shelter in court, it should do so nonetheless. The state legislature should likewise define via legislation who is “needy” and what the constitution entitles such persons to receive.

After decades of court-imposed constraints, the new decree provides the city with greater flexibility. That is a cause for some celebration. Friday’s agreement, however, is not a comprehensive solution to New York’s migrant crisis.

Photo by Fatih Aktas/Anadolu Agency via Getty Images


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