Foscarinis, Maria --- "Homelessness, Litigation and Law Reform Strategies: A United States Perspective" [2004] AUJlHRights 6; (2004) 10(1) Australian Journal of Human Rights 6

Homelessness, litigation and law reform strategies: a United States perspective

Maria Foscarinis*

Homelessness has been a major social problem in the United States for the past two decades. While it has a long history, homelessness grew dramatically in size and scope beginning in the early to mid-1980s. The resulting crisis spurred advocacy efforts for both emergency relief and systemic reform at all levels of government.

This article reviews major trends in legal advocacy for solutions to contemporary homelessness in the US, and government responses to that advocacy. The article suggests that advocacy efforts may be viewed as falling into four stages.^[1] First, early advocacy focused primarily on local crisis response, and advocacy for a right to shelter dominated much of the 1980s. Later in that decade, a second stage emerged as advocacy shifted to the national level and demanded a federal response through both litigation and legislative initiatives. In the 1990s, the success of national advocacy led to a third stage of further litigation to enforce newly enacted laws; it also marked the beginning of national advocacy for longer-term solutions, with some success. At the same time, however, the third stage saw local government action marked by retrenchment of government aid, as well as implementation and harsh laws and policies aimed at homeless people living in public places. The article suggests that the early efforts to secure shelter — not followed by longer-term solutions — may have paradoxically helped lay the groundwork for these negative local policies.

Currently, and in what may be viewed as the fourth stage, national and some state and local advocacy is focusing more on longer-term solutions, especially in the provision of housing. Following a process of evolution over the years, national (and some local and state) government policy is making a rhetorical shift during this time, accompanied by some policy shifts as well. While much of this effort is focusing on requiring the ‘mainstream’ social welfare programs to respond to homelessness, significant increases in housing resources are also being called for to end homelessness. However, the paucity of law recognising economic rights in general and housing rights in particular makes advocacy for these resources particularly challenging.

Looking towards the future, the article concludes with a discussion of recent efforts to incorporate advocacy for the human right to housing in the US as part of a strategy to close this gap. While especially challenging in the US context — which largely does not recognise social and economic rights — this approach has generated interest among advocates as a possible auxiliary strategy. The article suggests that this approach may also help mitigate the negative impacts of the earlier crisis responses, and move advocacy towards long-term solutions to homelessness.

Introduction: homelessness in the US

Recent estimates are that on any given night, more than 800,000 people experience homelessness in the US, and that over the course of a year, 2.5 to 3.5 million people will experience homelessness (Burt et al 2001).^[2] A study published in 1994 indicated that 7 million Americans had experienced homelessness from 1985 to 1990, and that as many as 12 million Americans, or 6.5 per cent of the US resident population in that year, had been homeless at some point in their lives (Link et al 1995).^[3] The current homeless population is diverse, marking a shift from the predominantly middle-aged white male alcoholics who populated skid rows in the post-war era. According to the most comprehensive national survey of US homelessness to date, 34 per cent of homeless people are members of homeless families; about 23 per cent of the total population consists of minor children (Interagency Council on the Homeless (ICH) 1999: 18). Thirty-two per cent of the population is female (ICH 1999: 14). In addition, 44 per cent of homeless adults worked at some point in any given month (ICH 1999: 29). Some 39 per cent reported indicators of serious mental illness (ICH 1999: 29).

Lack of affordable housing is a primary cause of homelessness in the US (Burt et al 2001; US Conference of Mayors 2002). The gap between poor households in need of rental housing and the availability of affordable housing is 4.7 million; some 13.7 million households, or 14 per cent of all households, live in substandard housing or spend more than 50 per cent of their incomes on housing (Stegman et al 2000: 5). This is far in excess of the 30 per cent federal affordability standards (US Department of Housing and Urban Development 2001) and puts them at substantial risk of homelessness. At the same time, full-time work at the minimum wage is not sufficient to afford fair market rent, based on these federal affordability standards, for an efficiency apartment (an apartment consisting of only one room) in any of the 50 largest cities in the US (National Low Income Housing Coalition 2003). Mental and physical illness and addictions — and the lack of services to address them — are also significant factors contributing to homelessness, along with domestic violence (US Conference of Mayors 2002)^[4] and low levels of education.

Homelessness has a devastating effect. It is particularly deleterious to families and children. A recent survey of major US cities found that in 40 per cent of the cities surveyed, families may have to break up in order to be sheltered (US Conference of Mayors 2002). Homeless children suffer a number of additional harms. Because they lack a permanent address, homeless children may be denied access to school, and many do not attend school regularly or receive appropriate educational services (Julianelle and Foscarinis 2003). Numerous studies document the serious emotional and developmental problems that these children suffer, which may persist long past the period of homelessness, and increase the risk of adult homelessness (Julianelle and Foscarinis 2003; Better Homes Fund 1999).

Legal advocacy to address homelessness in the US: strategies and trends

Lawyers and legal advocacy have played a crucial role in addressing homelessness in the US. Litigation was a key advocacy strategy in the early local level advocacy for shelter, and legislation and regulatory advocacy, in addition to litigation, have been key to national advocacy efforts. Pro bono law firm lawyers have provided important and essential support to public interest lawyers. Bar associations have also helped by spurring greater involvement of the private bar, supporting public interest lawyers, and adding the clout of the organised bar to legislative advocacy.

Legal advocacy has been carried out in, and drawn upon, a broader advocacy context. Following legislative successes, for example, fact gathering and monitoring by service providers and other non-lawyers have been crucial to ensuring implementation of the laws and preparing litigation, if necessary, to enforce them. Similarly, outreach to inform local advocates and potential beneficiaries of legal rights has been essential both to permit such monitoring and to ensure that homeless people are actually able to claim their rights. Collaboration with non-lawyers and incorporation of strategies that are not strictly legal ones — such as outreach and monitoring — have become essential. Successful legal advocacy typically integrates a wide variety of partners and approaches.

This broad approach has been especially important in the US context. The most important elements of both long-term and immediate solutions to homelessness are housing, jobs and social services (Burt 1992; Burt et al 2001; US Conference of Mayors 2002). But there is little or no constitutional basis for protecting or creating access to these necessities; and statutory sources are uneven. Indeed, our legal system is commonly described as one that protects civil and political rights, but not economic or social rights. Legislative and regulatory advocacy has thus been crucial, leading to the creation of new laws that can provide substantive aid to homeless people as well as recognise and protect their rights.

Stage one: early legal advocacy — response to crisis

As the incidence of homelessness began to grow in the late 1970s, advocates pressed city governments to respond by providing emergency shelter. One of the earliest advocacy strategies aimed at addressing homelessness was litigation to secure a right to shelter under state and local law. Initially successful in securing court-ordered aid to homeless people, right to shelter litigation focused tremendous public attention and sympathy on the issue of homelessness. While subsequent local level advocacy included a focus on prevention, the early right-to-shelter advocacy in many ways defined the nature of government response to homelessness for years to come.

The first major case of this type was filed in 1979 in New York City. In Callahan v Carey (Callahan), a class of homeless men in New York City filed suit in a state court seeking to require the state and city to provide them with shelter and meals, arguing that the defendants’ failure to do so would cause them irreparable harm, including possible death from exposure during the winter months. Relying on a state constitutional provision stating that ‘[t]he aid, care and support of the needy are public concerns and shall be provided by the state’ (New York State Constitution, art XVII, s 1) and state and local statutes implementing this provision, the court held that ‘the Bowery derelicts are entitled to Board and lodging’ (Callahan at 2). The Court found that the then existing shelter spaces were not sufficient for ‘all of the destitute and homeless alcoholics, addicts, mentally impaired derelicts, flotsam and jetsam, and others during the winter months’ (Callahan at 1) and issued a temporary injunction requiring the city to provide shelter.

Following that ruling, plaintiffs and the city entered into a consent decree, and no final ruling on the merits was rendered. The Callahan consent decree obligated the city to provide overnight shelter to every eligible homeless man, set minimum shelter standards, and defined the process by which application for shelter was to be made and addressed. Shelter standards included the width and construction of shelter beds; required the provision of soap, towels, toilet paper, storage facilities and security; and defined maximum capacity levels for existing shelters. The decree foresaw the construction of new shelters, and set out standards for them as well. The sole mention of aid that might help homeless class members out of homelessness was a requirement that the city provide ‘clear written information’ to shelter applicants ‘concerning other public assistance to which they may be entitled’ (Callahan).^[5]

Advocates in other parts of the country brought suit to establish similar rights, based on state statutes, with some success. In Maticka v City of Atlantic City, for example, plaintiffs relied on a New Jersey statute, the General Public Assistance Law, requiring ‘immediate public assistance’ to ‘any needy’ person (44:8–107 et seq). In Hodge v Ginsberg, plaintiffs relied on a West Virginia Social Services for Adults Act that required the state to aid ‘incapacitated’ adults. In Hansen v Department of Social Services, plaintiffs relied on California’s Child Welfare Act, which required the provision of emergency shelter for all homeless children. In Washington DC, the Right to Overnight Shelter Act of 1984 was passed as a ballot initiative with 72 per cent of the vote; it guaranteed ‘safe, sanitary, and accessible shelter space, offered in an atmosphere of reasonable dignity’ (Committee to Save Initiative 17 2004; Wagman-Roisman 1991).

Litigation was also brought to establish rights under federal law. In Koster v Webb, filed in 1982, plaintiffs relied on a federal statute that established a system of emergency assistance to eligible needy families, through a joint federal-state program, to argue that New York State local governments had a duty under federal law to shelter homeless families. A federal district court held that because the state had ‘voluntarily committed’ itself to provide shelter pursuant to the federal program, plaintiff homeless families had an enforceable right to emergency shelter under that program. The case was subsequently settled by a consent decree specifying the terms and processes according to which shelter would be provided.

Advocates had few options, however, for litigation to establish shelter rights under the US Constitution. In a 1972 case, Lindsey v Normet, the Supreme Court held, in the context of a landlord-tenant dispute over habitability, that there is no right to housing of a particular quality. While this case is often cited for the proposition that there is no constitutional right to housing under the US Constitution, the Court’s holding was not actually that broad. Nonetheless, as a practical and political matter, prospects for establishing a constitutional right to shelter or housing were rightly seen as extremely limited, and such litigation was not actively pursued. However, successful suits were filed under the US Constitution to protect the procedural rights of shelter residents. Generally filed in response to shelter closings, such suits established protections, such as the right to ‘particularised notice’, an explanation of the reasons for closing and an opportunity to submit written responses, as in Williams v Barry.^[6]

Stage two: beyond local response — national advocacy

By the early to mid-1980s, homelessness was clearly a national crisis (General Accounting Office 1985; Hopper and Hamberg 1986). However, the federal government was slow to respond. In fact, the Administration then in office initially denied that homelessness was a national concern — or even an appropriate concern for government. Rather, according to then-President Ronald Reagan, homeless people were so ‘by choice’ (Boston Globe 1 February 1984, cited in Green and MacColl 1987). Funds for emergency food and shelter through the federal disaster relief program were appropriated for homeless persons on an ad hoc basis beginning in 1983, but no permanent legislation was authorised (Foscarinis 1993). In this context, legal advocacy began to focus on eliciting a national response, through both legislative advocacy and litigation.

Federal legislation

In the mid-1980s a coalition of legal advocates drafted model legislation designed to provide emergency, preventative and long-term solutions to homelessness. Based largely on the needs identified by legal services lawyers seeing homeless or near-homeless clients as part of their poverty practice, the proposed Homeless Persons’ Survival Act 1986 (HPSA) was organised into three titles or parts: emergency assistance, preventative measures and long-term solutions. Efforts to secure sponsors to introduce and champion the legislation in the US Congress initially met steep barriers. Homelessness was not viewed as a serious national policy issue, and even sympathetic members of Congress initially declined to sponsor the legislation, claiming that such support would not be politically prudent given the realities of upcoming elections and the political powerlessness of their homeless constituents (Foscarinis 1993).

Nevertheless, following concerted lobbying, in June 1986 the HPSA was introduced in both the House and Senate. Later in 1986, part of this proposed legislation was enacted as the Homeless Eligibility Clarification Act 1986. This new law provided that homeless people could receive benefits under a series of federal programs, including Supplemental Security Income (SSI), Medicaid, Aid to Families with Dependent Children, and food stamps, without having to supply an address.^[7] It also established a pre-release program to allow persons confined in institutions such as mental hospitals and prisons to apply for food stamps and SSI benefits, in order to prevent their becoming homeless upon release. Also enacted in 1986 was the Homeless Housing Act 1986, legislation creating and funding two small ‘demonstration’ programs to fund emergency shelter ($US10 million) and transitional housing ($US5 million).

Following these successes, grassroots and legal advocates worked in tandem over the winter of 1986–87 on a major campaign to pass additional legislation. In the spring of 1987, the first major federal legislation addressing homelessness was passed in Congress with large, bipartisan majorities (Congressional Record 1987a, b). In July, the bill was signed into law by President Reagan; the official White House statement noted that the bill was signed in the evening to indicate the President’s ‘reluctance’ in signing it (Pear 1987). Nonetheless, the Stewart B McKinney Homeless Assistance Act 1987 (McKinney Act), named in honour of its chief Republican sponsor, who died shortly after its passage, recognised homelessness as ‘an immediate and unprecedented crisis’ requiring a federal response ‘to meet the critically urgent needs of the homeless of the Nation’. (McKinney Act, ss 11301–4)

As enacted in 1987, the McKinney Act consisted of nine separate titles, with shelter and transitional housing as central elements. These included the establishment of the Interagency Council on the Homeless as an independent agency charged with reviewing, monitoring and coordinating all federal programs to assist homeless people, recommending improvements, and disseminating information. The Act established several shelter and transitional housing programs, along with a small permanent housing program; it also created a program for federal surplus properties to be made available for use by states, localities and non-profits to house programs for homeless people. The remaining titles established a health care program, limited job training and adult literacy programs, and a program to ensure access by homeless children to public school education, also providing for a legal right to such access. They also included provisions to improve access to food stamps and surplus food programs.

The McKinney Act authorised expenditures of just over $US1 billion over two years: $US438 million for 1987 and $US615 million for 1988. However, the amount actually appropriated — through a process separate from that in which legislation is written, or ‘authorised’ — was significantly less. For fiscal year 1987, Congress appropriated $US350 million to fund the programs, through an emergency supplemental appropriation. Another $US362 million was appropriated for 1988. Since that time, significant programmatic changes have been made and funding has increased substantially, as will be discussed below.

The McKinney Act was in large part Title I (primarily emergency relief) of the HPSA; Titles II and III of the HPSA, which provided for preventative and long-term relief, were not enacted. Indeed, in carrying out the campaign for what became the McKinney Act, advocates made a strategic decision to press for this first title based on a calculation that this was a goal that, while still an extremely difficult one, was potentially achievable. This decision represented a trade off: a winter campaign focusing on immediate crisis needs would have more political currency; however, this same calculation risked perpetuating the notion that emergency relief — such as shelter — could serve as a solution to homelessness.

Advocates and congressional supporters attempted to guard against this result. During the debate on the legislation, then Senator Al Gore, a Democrat from Tennessee and the chief Senate sponsor of the HPSA, speaking on the floor of the Senate, said that ‘[n]o one in this body should believe that the legislation we begin considering today is anything more than a first step towards reversing the record increase in homelessness’ (Congressional Record 1987c). In an effort to reflect the continuum between actual homelessness and extreme poverty, and to trace a path for further action to address it, the Act’s definition of homeless persons includes those lacking an ‘adequate nighttime residence’ (42 USC s 11302 (a)).^[8]

Federal litigation

Federal litigation proceeded parallel to this legislative advocacy. In an early suit against the Department of Defense (DoD), a federal district court ordered DoD to issue regulations implementing an obscure federal program to make surplus Department of Defense properties available to service providers to use to aid homeless people through provision of shelter and other programs (Bruce v Department of Defense). This case established an important precedent: the plaintiffs — a homeless person in need of shelter, a shelter provider without sufficient space to meet demand, and a national advocacy organisation — were able to demonstrate a causal connection between the defendants’ failure to implement the program and the situation of the plaintiffs, sufficient to establish standing to sue to enforce the program, designed to provide facilities for use as shelter and other programs for homeless people. This early victory also focused the attention of a major federal agency on homelessness as a national and federal concern.^[9]

Several other early federal suits did not succeed in court but spurred further advocacy for new national policy, in some cases for the same reasons. For example, in Younger v Turnage, plaintiffs sought to require the Veterans Administration to conduct outreach to homeless veterans. Following the filing of the suit, the agency undertook some steps towards providing outreach, and argued that this was sufficient to fulfil its statutory obligation. The court agreed and dismissed the suit, but the outreach steps were put in place. In National Law Center on Homelessness and Poverty v Department of Health and Human Services, the plaintiffs sought to require the Social Security Administration (SSA) to implement a program to fund outreach to help disabled homeless people apply for and receive disability benefits. The court held that the statute did not expressly require SSA to do so, and dismissed the suit; however, following the attention generated by the suit, SSA allocated $US1 million in outreach grants for this purpose.

After the McKinney Act was passed, advocates initiated monitoring efforts to determine whether its programs were being properly implemented, and several quick, successful suits were filed to require the federal agencies to disburse funds according to the urgent timetable established by Congress (National Coalition for the Homeless v Pierce; National Coalition for the Homeless v Bennett). Subsequently, more complex suits to implement the new law were filed, beginning a long process of litigation, legislative change and more litigation. In 1988, a suit filed to enforce compliance with Title V, the Federal Surplus Property Program, resulted in a permanent injunction against five federal agencies, requiring them to make available free of charge ‘suitable’ real property, by deed or lease, to providers of services for homeless people. Because the agencies generally have incentives to sell or keep their property rather than turn it over for free, compliance has been difficult and, to date, several enforcement motions have been filed successfully against the federal agencies to enforce the order (National Law Center on Homelessness and Poverty v United States Department of Veterans Affairs).

Stage three: the 1990s — two steps forward, one step back?

During the 1990s, much of national advocacy focused on improving, expanding and enforcing the provisions of the 1987 McKinney Act. Appropriations grew, and significant amendments strengthened many of the law’s provisions and focused the McKinney Act’s programs more on preventing and ending homelessness, reflecting the success of advocacy in shifting national policy in that direction. At the same time, however, many local governments focused on cutting back homeless people’s rights and benefits. Further, they increasingly enacted laws that punished homeless people living in public spaces. Local litigation focused increasingly on court challenges to these cuts and to city efforts to ‘criminalise’ homelessness.

Local government: retrenchment and criminalisation

In the years following the initial success of Callahan v Carey, legal advocates in New York City filed repeated contempt motions in both that case and McCain v Koch, challenging the city’s failure to provide adequate emergency shelter for homeless individuals and families. Perhaps reflecting the national trend, which in 1996 resulted in the enactment of welfare ‘reform’ and the elimination of the entitlement to aid for needy families, localities also increasingly sought to limit shelter rights where they had been previously established. Often accompanied by the rhetoric of ‘personal responsibility’ and the claim that homeless people were otherwise receiving undeserved or unearned largesse, these limitations took the form of work requirements, time limits on shelter stays, ‘fault’ standards and, in some cases, elimination of the right to shelter.

For example, in New Jersey advocates fought efforts to impose a ‘fault standard’ on shelter rights established in Maticka v City of Atlantic City, requiring families to demonstrate that they had not had more than 30 days’ notice of their impending homelessness, and thus had not been able to prevent it, effectively assuming that personal resourcefulness — as opposed to external resources, such as the availability of affordable housing — was the key to avoiding homelessness. In Washington DC, advocates filed suit to enforce the right to shelter, and the city was repeatedly held in contempt for failing to provide it (see, for example, Atchison v Barry). City officials then sought changes in the law to undermine the basis for the right, and in 1994 the law establishing the right was repealed (District of Columbia Code Annotated 1984, s 3-601 (1988 Repl) (repealed 1991)).

At the same time, cities responded to the growing numbers of homeless people living in public places by imposing criminal sanctions for conduct such as sleeping or begging in public. Resurrecting old vagrancy laws and enacting new laws to regulate the use of public space, cities enforced these laws to sweep homeless people out of particular city sections or before major city events (National Law Center on Homelessness and Poverty (NLCHP) 1991, 1993, 1994, 1997, 1999, 2002, 2003). In response, litigation challenged this trend, and began increasingly to dominate local-level legal advocacy on homelessness. Just as right-to-shelter litigation in many ways dominated in the 1980s, in the 1990s challenges to ‘criminalisation’ became dominant (Foscarinis 1996).

Several important court rulings upheld challenges to such city laws and practices under the US Constitution.^[10] In Pottinger v Miami (Pottinger), a leading case on this issue, the court found that there were approximately 6000 homeless people in the city at any given time but only 700 shelter beds, and that unsheltered homeless people thus had no alternative but to sleep in public. The court held that punishment for involuntary, life sustaining and otherwise innocent conduct — or, in another formulation, punishment for ‘status’ — was ‘cruel and unusual’ and thus violated the Eighth Amendment to the US Constitution.^[11] Other courts adopted similar reasoning, as in Johnson v Dallas and Church v City of Huntsville. Some courts, however, have rejected such challenges, holding that homelessness is not a ‘status’ and that the Constitution is thus not implicated (see, for example, Joyce v San Francisco).^[12]

In a related trend, zoning laws increasingly excluded housing and services for homeless persons from certain areas. Just as with criminalisation, some cities enacted new laws or more stringently enforced existing laws so as to exclude or severely limit housing or service providers. A particularly striking example occurred in November 1995, when the city of Hartford, Connecticut, imposed a moratorium on the creation and expansion of all social service facilities in the city (NLCHP 1997). While litigation challenging such laws is somewhat constrained because federal anti-discrimination laws do not protect homeless people specifically, the prevalence of protected characteristics, such as disabilities, among the homeless population has been successfully cited to invoke the protection of federal fair housing laws barring discrimination on this basis (Turning Point v Caldwell).

Both the retrenchment of shelter rights and the rise in punitive and exclusionary laws have been cited as evidence of declining public ‘sympathy’ for homeless people (for example, Stone 1991: 3A). However, they may also be viewed as the result of the limitations of emergency shelter as a response to homelessness. Studies regularly find that there is insufficient emergency shelter, by far, to accommodate the need (US Conference of Mayors 2002). More fundamentally, emergency shelter does not address the causes of homelessness, and thus does not truly solve it; indeed, shelter rules and conditions may impede the ability of homeless persons to secure employment or housing (see, for example, NLCHP 1999). But the availability of even limited emergency shelter may give the appearance that solutions are in place, thus making it possible to blame homeless people for ‘choosing’ to be homeless despite the availability of these perceived ‘solutions’ (see also Hopper and Baumohl 1994). Punitive and exclusionary measures then become easier to justify, and legislation to enact them can proceed with public support or at least without public opposition. The convergence of these two trends meant fewer and fewer options for homeless people, with the extreme but logical end result of simple banishment.

Perhaps emblematic of these trends was the remedy initially ordered by the Pottinger court: the creation of two ‘safe zones’, or public areas where homeless people could sleep without danger of arrest. In effect, this would have meant accomplishing a further step in what may be seen as a downward slide in acceptable minimum standards for accommodations: from housing to shelter to bare space on the ground. This remedy was, however, never actually implemented. Instead, the parties entered into a consent decree that included a ‘no bed, no arrest’ policy that prohibited police from arresting homeless people when no shelter beds were available. The decree’s explicit link between the constitutionality of arrest and the availability of shelter also refocused — at least in this case — attention on the key question of the availability of solutions.

National advocacy: moving beyond the McKinney Act?

In contrast to most local level trends, changes at the federal level during the 1990s were more positive. Funding for the McKinney shelter and housing programs increased significantly. In 1987, appropriations for these programs stood at $US350 million; by the end of the 1990s, appropriations were at $US1.26 billion. The McKinney Act programs also changed substantively, with increased emphasis on longer-term, not just emergency, solutions (Interagency Council on the Homeless 1994; Foscarinis 1996).

Advocacy efforts for additional, longer-term federal aid began shortly after passage of the McKinney Act, with proposed legislation for permanent housing as a long-term solution to homelessness. But this effort to make good on the original advocacy blueprint, the HPSA, foundered. At the same time, the infusion of new federal funds the McKinney Act brought to communities resulted in some loss of grassroots momentum, especially as the providers who had previously led advocacy efforts now focused on applying for the new resources (Foscarinis 1993). A few years later, in 1992, an effort to move ‘beyond McKinney’ was initiated, and a coalition of national and local level groups worked to define a fuller agenda for long-term solutions than those identified in the HPSA. Whereas the proposed HPSA had focused on affordable housing as the long-term solution, this initiative focused more broadly on the need for adequate incomes and social services, as well as housing.^[13]

Meanwhile, efforts to amend the McKinney Act succeeded in moving its programs in the direction of longer-term solutions. For example, in 1990 the emergency shelter grants program was amended to allow funds to be used for homelessness prevention, and a new ‘Shelter Plus Care’ program was created to provide rental and other housing assistance to disabled homeless people. In 1994, amendments to the Education of the Homeless Children and Youth program specified the rights of homeless preschoolers to a free and appropriate public preschool education; gave parents of homeless children and youth a voice regarding their children’s school placement; and required educational authorities to coordinate with housing authorities.

The Clinton Administration, endorsing the need for longer-term solutions, also put in place programmatic changes through the administrative process (Interagency Council on the Homeless 1994). Beginning in 1994, a new process for the distribution of much of the funding for the McKinney shelter and housing programs was initiated by the Department of Housing and Urban Development (HUD).^[14] This ‘Continuum of Care’ process brings together local government and non-profit providers to collaboratively identify gaps in services for homeless people and devise a plan to bridge those gaps, as part of the application process for McKinney shelter and housing funds. In addition to encouraging planning and coordination, this process also awards extra points for applications that include efforts to incorporate access to ‘mainstream’ programs. During this time, funding for the McKinney Act programs peaked at $US1.49 billion in the 1995 fiscal year.

Litigation to enforce Title V, the federal surplus property program, diminished as compliance improved, after several unsuccessful attempts by certain of the agencies to repeal or amend the law. With the start of the closure of many military bases for conversion to civilian use, efforts began in Congress to amend Title V to exempt vacant military bases from its provisions. In 1994 this effort succeeded, and military bases were excluded from Title V, which grants a right of first refusal to federal surplus property to providers of services to homeless people. However, advocates succeeded in obtaining a requirement in defence department legislation that the needs of homeless people be addressed in the process of converting military bases to civilian use, and that homeless people and their advocates be included in local processes to plan for the conversion. While Title V had provided for a right to specific property, the new legislation required the inclusion of homeless people’s needs and representatives in the conversion process — and allowed greater flexibility in addressing those needs. For example, rather than give over base property, a community could allocate off-base property to providers of services to homeless people, or it could sell base property and allocate the proceeds to services for homeless people. Numerous former bases and other federal and non-federal properties are now being used for transitional and permanent housing (Foscarinis 1995; Weir 1995; Hallinan and Bishop 1995).

Litigation to enforce Title VII of the McKinney Act, which requires state and local agencies to provide access to education for homeless children, was also filed. Lampkin v District of Columbia, filed in the Federal Court, was initially dismissed on the basis of a recent Supreme Court decision narrowing the enforceability of federal rights;^[15] on appeal, this ruling was reversed and the McKinney Act education provisions were held enforceable. Following the precedent set in that ruling, a state court suit was also able to go forward, resulting in a consent decree establishing detailed steps the Chicago Public School system would have to take to ensure homeless children’s access to school.

Stage four: current trends

Local policies that characterised the 1990s, applying punitive measure to address homelessness, continue in many places. But much national and some state and local policy is moving in a more positive direction. In particular, much recent focus is on removing barriers to the ‘mainstream’ anti-poverty programs as a means of preventing as well as ending homelessness. Because most government systems assume that applicants and recipients have fixed addresses, homeless persons are often excluded from their aid; removal of the barriers can help people out of homelessness or prevent them from becoming homeless (General Accounting Office 2000).

Some of these current efforts build on the McKinney Act and its precursors,^[16] and earlier litigation. For example, a major ‘mainstream’ program that could be aiding homeless people, but often fails to do so, is education. Litigation to enforce the education provisions of the McKinney Act established education as a right of homeless children, and amendments to those provisions of the Act steadily improved access for homeless children to public school, as well as to related benefits, such as school meals. More recent legislative amendments and regulations relating to the mainstream programs require them to address the needs of homeless children. Currently pending amendments would further those legislative inroads, with amendments to the federal laws governing special education and early childhood programs.^[17]

Other mainstream programs currently undergoing change include disability benefits under the Social Security Act, also a right or ‘entitlement’ under the law. Many homeless persons are eligible to receive SSI or Social Security Disability Insurance (SSDI) benefits due to a mental or physical disability; in many states, they would then automatically also receive health benefits under the Medicaid or Medicare programs. The application process is difficult, however, and without special processes or assistance homeless applicants are unlikely to receive those benefits.^[18] In 2002 Congress required the SSA to develop and implement a plan to remove barriers to benefits for homeless people and, in 2003, following the issuance of the plan, Congress appropriated funds for ‘demonstration’ programs for outreach and expedited application procedures for homeless people.^[19]

The recent focus on access to mainstream programs has been accompanied by an effort to shift McKinney shelter and housing resources away from funding services — which could instead be funded by the mainstream programs — and towards funding permanent supportive housing. Beginning in 1998, Congress imposed a 30 per cent maximum on the use of emergency shelter grants for services.^[20] In 2000, Congress required that 30 per cent of McKinney shelter and housing funds be used to provide permanent supportive housing for homeless persons, and required grantees to coordinate and integrate their programs with ‘mainstream’ programs.^[21]

Perhaps most dramatically, at the White House level the Bush Administration has publicly expressed a goal to end ‘chronic homelessness’ in 10 years, and proclaimed this a priority.^[22] This policy emphasis was accompanied by the revitalisation of the Interagency Council on the Homeless (which had lost its funding and lain dormant for years) and the appointment of an advocate for the homeless to direct it. While limited to ‘chronically’ homeless people — and to the exclusion of the vast majority of homeless families and children — these steps are significant. In publicly stated commitment, at least, they mark a major shift from the Reagan Administration’s position, which denied the existence of homelessness as an object of national policy.

Nonetheless, the setting of this important, albeit incomplete, goal has not been accompanied by significant new funding. To date, the Administration has announced $US35 million in new funds and additional supportive housing for disabled homeless people; legislation proposed by the Administration to create a ‘Samaritan Initiative’ to provide $US70 million in federal funds for supportive housing for disabled homeless people is currently pending in Congress (Samaritan Initiative of 2004. In addition, other Administration actions and proposals affecting anti-poverty and other social programs threaten to increase the causes of homelessness. The Administration’s proposed budget for low-income housing programs as a whole would significantly cut funding, resulting in the loss of housing for thousands (National Low Income Housing Coalition 2003).

At the local level, a number of states and localities have adopted plans to end and prevent homelessness, spurred by the call of national advocates (National Alliance to End Homelessness 2000). Such plans generally focus on moving disabled homeless people into permanent supportive housing, preventing homelessness through discharge planning, and moving homeless people rapidly into permanent housing. Much of this effort has relied on recent research that has shown that people with multiple problems, primarily mental or physical disabilities, were using a disproportionately large percentage of shelter and service resources; thus, ending homelessness for this population through permanent supportive housing would free up resources for many more needing only short term help (Culhane 2002).

In addition, in a few cases cities have adopted positive, as opposed to ‘criminalising’, approaches to street homelessness. For example, following the success of the Pottinger lawsuit, the Dade County government (where Miami is located) imposed a half-cent meal tax to raise funds for housing, job training and substance abuse treatment for homeless people. In Philadelphia, police work with outreach workers to offer services to unsheltered homeless people, and the city has backed up this outreach with some increased funds for services (NLCHP 2002). However, these approaches still represent a small minority compared to the still prevalent criminalising measures.

Moreover, despite these positive developments at both the national and local levels, and the growing momentum for solutions, the changes now underway are by themselves unlikely to provide true solutions. The ‘mainstream’ programs, while helpful, cannot alone end homelessness; the assistance they provide is not sufficient relative to housing costs. Moreover, the federal programs that fund such housing have been drastically cut back, and private efforts to make up the gap — such as non-profit housing programs — have been not nearly adequate. In order to end homelessness, the severe lack of housing affordable to low income people must be addressed and remedied.

Future trends: incorporating a human rights approach?

More recently, advocates have begun to explore and develop strategies focusing on housing as a human right. Interest in this approach derives from the inclusion of economic and social rights within human rights law. Because the US legal system does not generally protect such rights but, rather, emphasises civil and political rights, human rights law is a possible source of models in developing laws and policies to address homelessness and poverty The interpretation of human rights laws by international bodies may also serve to define further the meaning of human rights law and its applications, providing a source of tools that US advocates may use. At the same time, building support for the housing resources needed to end homelessness may be advanced by a paradigm shift that recognises housing as a human right.

Established human rights law recognises the human right to housing; however, this law is not necessarily binding on the US. Indeed, the International Covenant on Economic, Social and Cultural Rights, the treaty most relevant to the right to housing, has not been ratified by the US. The International Covenant on Civil and Political Rights, which contains some provisions directly relevant to homelessness and housing, has been signed and ratified by the US, but with so many reservations that its effect is severely limited. The Universal Declaration of Human Rights is a declaration, not a treaty, and thus not by its terms binding, though some argue that it has achieved the status of customary international law and therefore is binding (Leckie 1992; NLCHP 1998).

In addition, while the US Constitution (art 6, s 2; art 2, s 2) accords treaties the same status as federal statutes, they have typically been ratified with reservations that provide that they are not ‘self-executing’, and thus not enforceable absent passage of implementing legislation by Congress.^[23] However, the Supreme Court has held that federal statutes must be interpreted whenever possible so as not to conflict with ratified treaties, whether self-executing or not, or with customary international law (Murray v Schooner Charming Betsy). In fact, the US Supreme Court has looked to international law as well as to the laws and practices of other nations in analysing claims under US law. For example, in Washington v Glucksburg, a 1997 decision concerning the constitutionality of a state law banning assisted suicide, the Court cited the practices of other countries (in particular, ‘Western democrac[ies]’). Individual justices have also noted the relevance of international law and practice to US law (see, for example, Breyer J in Knight v Florida (dissenting); Ginsburg 2003). A number of lower courts, federal and state, have referred to or cited human rights law in relevant contexts as well (see Detainees v Malcom; Lareau v Manson; In Re Barbara White; Boehm v Superior Court).

Moreover, numerous federal statutes recognise the importance of housing and provide funds, albeit insufficient, towards making it available to all; federal law also protects some housing rights, such as the right to be free from discrimination (Hartman 1998; Salsich 1993; Edelman 1987). State constitutions and laws are often broader, and some guarantee additional rights. Some US cities have recently adopted resolutions identifying themselves as human rights cities (Oakland City Council 1998; Berkeley City Council 1998). Legislation including recognition of a right to housing was introduced in the US Congress in the past few years, including most recently as part of an omnibus bill to end homelessness (Bringing America Home Act 2003). While incorporating the entire right may be an elusive and far-off project, incremental progress is clearly possible.^[24]

Within this context, advocates organised the first national forum on housing as a human right in April 2003.^[25] Supported by a variety of US housing, homelessness and legal groups, this was an occasion for the US groups to learn about housing as a human right and strategise about potential applications in the US. Specific ideas resulted, including educating judges, lawyers and the public; identifying specific legal challenges amenable for use of human rights law as an ‘interpretive guide’; developing and advocating for models that advance the right to housing; and organising and writing NGO reports to UN treaty monitoring committees for treaties the US has ratified (see also Hartman 1998; Foscarinis 2000).

Following the forum, additional steps are being taken and strategies identified, including analysing the closure of public housing and removal of its residents as a ‘forced eviction’; preparing a ‘shadow report’ for submission to the relevant UN committee; developing and advocating for the enactment of a city level resolution adopting the right to housing; and identifying possible litigation challenges in which human rights law could be relied upon as an ‘interpretive guide’.

Conclusion

Legal advocacy to address homelessness in the US over the past two decades has followed a trajectory that may be seen as proceeding in three phases, with possibly a fourth now underway. While these phases are by no means exact or distinct, and include much overlap, they may be useful in analysing legal advocacy to date as well as planning for the future.

In tracing this trajectory, it is also possible to discern patterns and relationships. At the federal level, there has been a striking shift in rhetoric and stated policy over the past two decades. While the Reagan Administration publicly adopted the view that homelessness is a ‘lifestyle choice’, and not a national policy concern, the current Bush Administration has not only given priority to homelessness as a national policy concern, but has also made a commitment to ending chronic homelessness in the next decade. During the same time, however, local level policy shifted from at least some positive response to the demand for shelter to the adoption, and in some cases even the embrace and promotion, of punitive and criminalising policies. While some are now again moving in more positive directions, this shift is still limited.

Many factors are at play and may explain these movements in law and policy, including political trends much larger and distinct from advocacy on homelessness. The initial focus by advocates and government on emergency shelter as a solution to homelessness may have facilitated it as well. The current effort to focus instead on housing and other elements of more permanent solutions may help rectify this trend and move advocacy and policy towards solutions to end homelessness in the US. However, without larger changes that extend beyond homelessness to create additional resources for affordable housing for low-income people, these efforts are unlikely to succeed. Efforts to implement a right to housing in the US aim to galvanise and support efforts to secure those resources. l

References

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Benefit v Cambridge 424 Mass 918 (1997)

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District of Columbia Code Annotated (DC Code Ann), s 3–601 (1988 Repl) (repealed 1991)

Head Start Improvements for School Readiness Act, HR 1940 (proposed bill)

Homeless Eligibility Clarification Act, Pub L No 99–570, 100 Stat 3207 (1986)

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Improving Education Results for Children with Disabilities Act of 2003, HR 1350 (proposed bill)

Individuals with Disabilities Education Improvement Act of 2003, S 1248 (proposed bill)

New York State Constitution, art XVII, s 1

Right to Overnight Shelter Act of 1984, DC Code Ann 1988, s 3-601 (repealed 1994)

Samaritan Initiative Act of 2004, HR 4057, 108th Cong (2004) (proposed bill)

School Readiness Act of 2003, S 2210 (proposed bill)

Stewart B McKinney Homeless Assistance Act, 42 USC s 11301 (1987)

Statement of Managers on Revenue Portion of Title XIII of Conference Report on Omnibus Reconciliation Act of 1993, HR 103–213

Constitution of the United States

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International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3

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* Executive Director, National Law Center on Homelessness & Poverty; AB Barnard College (1977); MA Columbia University (1978); JD Columbia University (1981). I am grateful to Seiji Niwa and Katie Lee for research assistance drawn upon for this article.

[1] Of course, advocacy has not progressed in neat categories. But for purposes of an overview of US legal advocacy, these categories will help illuminate the progression of that advocacy, and provide a basis for understanding how strategic decisions have affected trends.

[2] Such estimates generally define ‘homeless’ to include only people living in shelters or transitional housing, or in public places; they generally do not include people who are ‘doubled-up’ or in severely inadequate housing.

[3] This survey may be under-representative because it focuses on adults and US residents.

[4] In a comprehensive national survey of homeless people, domestic violence was one of the top four reasons given by homeless women for leaving their last residence (Burt et al 2001: 66).

[5] The decree was later extended to apply to homeless women (Eldredge v Koch) and to families (McCain v Koch).

[6] Some early litigation to prevent homelessness was also successful. A New York court held that, under state law, state psychiatric institutions must address housing in planning for the discharge of patients. In New York and in Massachusetts, advocates argued successfully that state-determined welfare benefit levels must be sufficient to allow recipient families to maintain their own housing.

[7] It did not, however, ensure that they could apply without an address; that requirement, originally part of the legislation, was removed from the final bill.

[8] In fact, some agencies’ regulations interpret ‘homeless individuals’ to include those living ‘doubled-up’.

[9] The underlying law was subsequently superseded by the passage of much stronger provisions in Title V of the McKinney Act, discussed below.

[10] Courts have also held that broad restrictions on begging in public spaces may violate the First Amendment, as in Loper v New York City Police Department and Benefit v Cambridge, and the Equal Protection Clause of the Fourteenth Amendment, as in Patton v Baltimore. These courts have generally viewed begging as speech protected by the First Amendment (Foscarinis 1996; Hershkoff and Cohen 1991).

[11] The court also held that the city’s policy of arresting homeless persons for sleeping in any public place when there was insufficient shelter space, and confiscating and destroying their belongings, violated the right to travel, the Equal Protection Clause, the Due Process Clause of the Fourteenth Amendment and the Fourth Amendment.

[12] Moreover, many cities have taken steps to make their laws ‘litigation proof’ by narrowing the restrictions they impose, making the constitutional challenge much more difficult, as in Roulette v Seattle. Some of these changes can reasonably be taken as advocacy victories; some simply move the battle to the enforcement arena.

[13] Advocacy also addressed other issues, such as voting rights for homeless people and their effective exclusion from the national Census (National Coalition for the Homeless and National Law Centre on Homelessness & Poverty 2000; National Law Center on Homelessness and Poverty v Kantor.)

[14] An amendment to the McKinney Act through the appropriations process consolidated funding but not the programs (Foscarinis 1995).

[15] The statute imposes obligations on the states and the District of Columbia. Lampkin was filed against the District of Columbia.

[16] The Homeless Eligibility Clarification Act removed many permanent address requirements for receipt of public benefits, but did not ensure that homeless people can actually apply for them.

[17] Currently pending in the US House of Representatives is the proposed Head Start Improvements for School Readiness Act and its companion legislation in the US Senate, the proposed School Readiness Act of 2003; in the House, the proposed Improving Education Results for Children with Disabilities Act of 2003 and its companion legislation in the Senate, the proposed Individuals with Disabilities Education Improvement Act of 2003.

[18] In the early 1990s, litigation to require such change, while unsuccessful in court, did lead to ‘demonstration’ legislation: see National Law Center on Homelessness and Poverty v Department of Health and Human Services.

[19] Another ‘mainstream’ program that has been altered to accommodate homeless people and the Earned Income Tax Credit (through agency interpretation): Statement of Managers 1993.

[20] This change was made in the Appropriations Act for Fiscal Year 2000 (1999).

[21] These changes were made through amendments to the Appropriations Act for Fiscal Year 2001 (2000).

[22] ‘Chronic homelessness’ refers primarily to homeless people who are mentally ill or substance addicted.

[23] However, this limitation does not apply to customary international law — law derived from the long-standing and consistent practice of nations — and it requires no implementing legislation to become binding law, as established in The Paquete Habana and Banco Nacional de Cuba v Sabbatino.

[24] In theory, the question of a right to housing under the US Constitution remains open, although not currently likely.

[25] The Centre on Housing Rights and Evictions, based in Geneva, and the National Law Center on Homelessness & Poverty, based in Washington DC, organised the forum. The conference program is reprinted in a report issued by NLCHP in January 2004.