Thinking about Poverty and Law - Part 3 - Homelessness and Civil Rights

Homelessness of Families Result in Curtailment of Civil Rights

Before 1981, there was no homeless population in Westchester County, New York where I worked for a Legal Services field program. When a family was evicted or burned out of their home, the family quickly obtained replacement housing. However, with welfare grants not keeping pace with the rising costs of housing during the 1970s, many families were able to pay their rent only by using the portion of their earned income that was exempted by law from consideration in calculating their welfare grants (the first $30 plus one third of the balance of gross income). One of the supposedly cost saving welfare reforms of the early Reagan years was the elimination of this exemption. It was then that we first saw families become homeless. Over the years, rooming houses were eliminated and many single people also lost their only affordable shelter.

The massive numbers of homeless people, including thousands of children brought about a system of so-called “emergency housing,” arranged and supported by the welfare department. In time, the welfare department contracted with corporations to provide “emergency” services to the ever growing numbers of homeless people. The result was a system where due to no fault of their own, many children and adults found themselves in environments where the normal conditions and rights of civil life and society did not apply. Instead, families became subject to strict supervision, a lack of basic privacy and a set of special rules and controls.

Some examples: Homeless families and single people became "licensees" of their accommodations, rather than tenants. As licensees, they could be evicted from emergency apartments and shelters without any of the normal rights of tenants. They could be denied overnight visitors and allowed restricted visitation during the day. They had little or no redress from unsanitary and unsafe housing conditions. They could be required to submit to physical and mental examinations and therapy sessions as determined by case workers and housing managers. Their rooms and apartments were subject to unannounced searches, even during the night, to ensure that there was no unauthorized person on the premises and that they possessed no contraband. Below, I set forth the text of a brief I filed concerning privacy violations in emergency housing.

These and many other restrictions on normal living conditions were rationalized as necessary incidents of the "emergency" situation created by a large homeless population. This was not a temporary dislocation of people caused by a great storm, fire, riot or other massive disturbance. It was a persistent situation that was created by welfare and housing policies and it could have been remedied by governmental policies. But the homeless were for the most part poor people of color and they were not desired in any community's "backyard.”

There is a major problem with fighting for the rights of homeless people to the have normal protections of privacy, freedoms to come and go, rights to protest unhealthy living conditions and to challenge unjust evictions and other arbitrary governmental decisions. That problem stems from the very concept of civil “emergency.” The government used the rubric of “emergency” to justify its curtailment of civil liberties and statutory rights of homeless families. Homeless families might complain that they were being deprived of entitlements, freedom and privacy without “due process of law,” but that constitutional concept is by no means absolute.

Due process and our other constitutional rights depend on the circumstances, on what people demand and on what each of the branches of government say they mean. What protections are available under “due process of law” is determined by balancing the interests of the government against those of the individual. As the Supreme Court stated in Mathews v. Eldridge, 424 U.S. 319, resolution of what process is due requires a “consideration of (i) the nature and weight of the private interest affected by the official action challenged; (ii) the risk of an erroneous deprivation of such interest as a consequence of the summary procedures used; and (iii) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.”

A state of emergency shifts the resolution of what process is due to the favor of the government, in order for it to reduce or eliminate the emergency. There is severe danger to civil liberties and other rights whenever the government determines that an emergency exists, especially if the emergency is indefinite in duration, widespread geographically and indeterminate in its scope and details. The government can be expected to take advantage of any shifting of the balance between government power and individual rights. The executive branch, especially, will not voluntarily give up whatever powers it can accumulate from the legislative and judicial branches in order to maintain surveillance and control of people.