Judge Helen Freedman’s calendar suddenly got emptier on January 17. With Mayor Michael Bloomberg looking on, she gladly relinquished her decades-old role as the unofficial author of the city’s policies for homeless families, and signed an agreement that furthers a growing trend in class action lawsuits: a settlement that replaces the judge with an oversight panel of experts.
After 20 years in litigation, the city and the Legal Aid Society will be spending a lot less time in court on the McCain case. Named for Yvonne McCain, a homeless mother, the case was first filed by Legal Aid against the Koch administration as an attempt to force the city to provide homeless families with adequate shelter and services.
Until now, the city Department of Homeless Services typically had to go to Judge Freedman for approval of policy changes that would affect the treatment of families at the Emergency Assistance Unit (EAU). Legal Aid’s chief advocacy tool when the city failed to follow the court’s orders was a series of contempt motions–most infamously, for allowing families to sleep overnight at the EAU.
But while they applaud the city’s willingness to break a 20-year deadlock, some advocates for homeless families caution that the obstacles to housing poor families have become so vast that even the most productive partnership between city officials and family advocates will be hard-pressed to find workable solutions. “It all depends on the economy,” says Patrick Markee of the Coalition for the Homeless, “and on how successfully they use Section 8 vouchers.” Many landlords do not accept federal rental subsidies from tenants, he says, because of the extensive paperwork involved. “If the economy doesn’t pick up a bit and they don’t dramatically increase exits, [homeless agency officials] are going to increase pressures that led to the problems of last summer,” when shelter demand reached record levels.
The settlement keeps all court orders in place, including families’ right to shelter and the prohibition against leaving families to sleep on the floor of the EAU. Under “extreme circumstances involving a major problem,” Legal Aid attorneys reserve the right to file a grievance, but not with the court. Instead, it will turn to a panel of citizens–one lawyer and two family advocates. The settlement granted the panel the authority to hear legal claims and to make recommendations to city officials, a right usually reserved for judges.
Those recommendations are enforceable by the court, but Judge Freedman will get involved only if the city or Legal Aid prove that the panel’s suggestions are “arbitrary and capricious.” In addition, the panel will be performing its own evaluation of the shelter system.
“If you litigate a case for 20 years, you have to find a way to do it differently,” says Gail Nayowith, a member of the panel. (The others are Daniel Kronenfeld, who ran Henry Street Settlement and its family homeless shelter, and government reform expert John Feerick.)
Nayowith speaks with some experience. The executive director of the Citizens’ Committee for Children, she also chairs an advisory board that is following up on the work of a similar panel that spent two years investigating the city’s child welfare system. Five years ago, the settlement of Marisol v. Giuliani, a class-action lawsuit against the Administration for Children’s Services, created a panel of experts, supplied by the Annie E. Casey Foundation. That panel was advisory, meant to help the city achieve the reform goals it had already set for itself.
During the panel’s tenure, the number of children in foster care dropped by 18 percent, and new admissions to foster care decreased nearly 24 percent; ACS’ budget grew, and child safety conferences became a mainstay of agency practice, the panel reported.
“It’s hard to say the panel provided the reform, but it’s part of a process of reform that asked ACS to step up,” says Nayowith. Andrew White of the Center for New York City Affairs believes the Marisol panel helped child welfare officials see the limitations of their policies, which emphasized removing kids from dangerous homes but paid too little attention to what happened before or after that. The advisors, he says, “convinced ACS to go down a different road, which focused on preventive services, permanency planning, trying to improve things for the kids in foster care.”
As its critics point out, though, the Marisol panel lacked teeth. “Marisol didn’t require the city to do much,” says Doug Lasdon of the Urban Justice Center. The plaintiff could take the case back to court only if the city outright ignored the panel’s recommendations without providing a good legal explanation. The legal agreement not only gave ACS the ability to dismiss the panel’s suggestions, but also forbade any new class action lawsuits from being filed against ACS during the two years the panel existed. Nayowith recognizes some of those limitations, and she and her advisory group have a long list of unfinished business they are now trying to get the city to take action on, including the fate of teens who leave foster care, the dismal state of family court and ongoing failures to bring parents into a constructive role.
The historic strength of the McCain panel lies in its judicial power. While he hopes he does not have to return to court on the case for a long time, Legal Aid attorney Steve Banks says he never considered giving up the right to take the administration back to see Judge Freedman.
Banks has already headed off one major sticking point: The city agreed to throw out a proposal to sanction homeless families who linger in the shelter system without taking permanent housing. Instead, the administration hopes to resolve the “family responsibility” issue by offering them a specific apartment. If they reject that offer, they will be removed from the shelter system, and not allowed in again, says Department of Homeless Services commissioner Linda Gibbs. Banks declares himself satisfied with the arrangement. “It’s important to keep families together,” he says. “If they are being referred to an apartment that meets standards, then that’s housing that’s being lawfully provided by the city.”
Yet several advocates for the homeless predict that there will be other issues that land the city back in court. As the summer nears, they say, the number of families looking for shelter will likely rise, as they have for years. Once school lets out, kids with no place to spend their days make already overcrowded living situations more hectic–and force families to move out of doubled-up situations and seek other housing options at the Emergency Assistance Unit. “I fear there will be a repeat of what was going on months ago in the EAU, where you had a significant numbers of families sleeping on the floor,” says Fred Shack, president of the Tier II Coalition, a group of shelter providers. “This is something the panel will not be in a position to solve.”
Gibbs begs skeptics to give the settlement a chance. The agreement gives the agency a green light to move ahead with its strategic plan, which stresses using performance measures to help it evaluate key data such as how effectively shelter operators are helping families move toward permanent housing. “As issues arise,” added Gibbs, “we’ll discuss them and turn to the panel for advice.” It’s no surprise that Bloomberg–eager to reduce the hours and cash the city spends in court–hired Gibbs for this job: As a deputy commissioner at ACS, she was in charge of making sure that agency took action on Marisol.