Franzese, Paula A.

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Housing and Hope: The Crisis in Homelessness,Discrimination in Housing, and An Agenda forLandlord/Tenant ReformtPaula A. Franzese"A few minutes into his Inaugural Address, on Jan. 20, 1989,George Bush - a Republican President often derided for his inat-tention to domestic problems - looked out at the crowd and de-clared, "My friends, we have work to do." The first task: helping"the homeless, lost and roaming." Ten years later, Bill Clinton -a Democratic President often praised for his acuity on social issues- delivered his seventh State of the Union address. In the courseof 77 minutes and 99 proposals, Clinton didn't offer any plans tocombat homelessness. He never even brought it up."'In the last fifteen years, the demand for emergency shelters hasincreased steadily.2 While accurate estimates of the homeless popula-tion are elusive, authorities tell us that the numbers of displaced andhomeless continue to rise. s In any given year, the ranks of the home-less exceed two million, with millions more close to the brink.4 In itsfourteenth annual 30-city report on hunger and homelessness, theUnited States Conference of Mayors found that the need for emer-gency shelter has grown each year since the survey was first publishedin 1985. 5 Homeless women with children are reported to be "thet Editor's Note: This article is based upon a presentation given at the Housingand Hope Symposium at Seton Hall University School of Law.Professor of Law, Seton Hall University School of Law; B.A., Barnard College,Columbia University;J.D., Columbia University School of Law.Romesh Ratnesar, Not Gone But Forgotten? Why Americans Have Stopped TalkingAbout Homelessness, TiME, Feb. 8, 1999, at 30. For a history of the activism of the1980s, see generally Inez Smith Reid, Law, Politics and the Homeless, 89 W. VA. L. REV.115 (1986).See Ratnesar, supra note 1, at 30.' See Maria Foscarinis & James Scheibel, End Homelessness Now, 1 GEO. J. ONFIGHTING POVERTY 44, 44 (1993) ("By conservative estimates, on any given nightmore than 700,000 Americans, including approximately 140,000 children, sleep onthe streets or in shelters.").4 See id.5 See Ratnesar, supra note 1, at 30.1461SETON HALL LAW REVIEWlargest, fastest growing subgroup of all homeless people today,"comprising up to 40% of the homeless population.!What is happening in the nation's major cities? The Coalitionfor the Homeless estimates that at least 16,000 people are withoutshelter each night in San Francisco, double the figure reported in1989.8 In New York City, a 1997 study found that 7,100 people werestaying in shelters, up from 6,000 in 1994.9 In Boston, the number ofhomeless jumped 40% between 1988 and 1996.0Yet, amidst the dire statistics, we as a nation have stopped talkingvery much about homelessness. The issue was all but ignored duringthe past two presidential campaigns.'" In the popular press, the num-ber of articles on the topic has declined sharply. 2 Less than 4% ofAmericans now view homelessness as "the main problem facing thecountry today," as compared to 8% of respondents just eight yearsago.'" Part of the reason for this lapse in consciousness is the falseimpression that somehow the problem is getting better. In manymunicipalities, one simply does not see as many homeless on thestreets, in parks, or on subways. Why not? At least fifty cities haveanti-vagrancy laws in place, sweeping the homeless out of the public'sview.' 4 "Increasingly, local governments are using criminal laws to6 Lynne Soine & Mary Ann Burg, Combining Class Action Litigation and Social Sci-ence Research: A Case Study in Helping Homeless Women with Children, 3 AM. U. J.GENDER & L. 159, 159 (1995); see also Gretchen P. Mullins, The Battered Woman andHomelessness, 3J.L. & POLY 237, 237 (1994) ("Fifty percent of the homeless womenand children in this country are fleeing domestic violence.")See Pat Swift, For Many, There's No Shelter from Housing Bias, BuFF. NEWS, Mar. 14,1998, at C7.8 See Ratnesar, supra note 1, at 30.9 See id,0 See id11 See Foscarinis & Scheibel, supra note 3, at 44.1 See Ratnesar, supra note 1, at 30. Time magazine reports that "[i]n 1987 thenumber of articles on homelessness that appeared in the New York Times, WashingtonPost, Chicago Tribune and Los Angeles Times totaled 847; in 1986 those four dailies ranjust 200 stories on the subject." Id.13 See id.14 See i& ("[Increasingly, frustrated municipal governments are responding tothe problem by cracking down on panhandling, sweeping homeless encampmentsout of parks and off streets and outlawing sleeping in public."); see also Homeless TestBerkeley's Tolerance, STAR-LEDGER (Newark, N.J.), Nov. 27, 1998, at 59 (reporting thatBerkeley's city council bans sleeping along two popular downtown avenues); HarrySimon, Towns Without Pity: A Constitutional and Historical Analysis of Official Efforts toDrive Homeless Persons from American Cities, 66 TUL. L. REV. 631, 632 (1992) ("The en-forcement of laws against homeless individuals that prohibit sleeping on public andprivate land may constitute effective banishment, abridging the rights of the home-less to freedom of movement.").1462 [Vol. 29:1461HOUSING AND HOPE SYMPOSIUMaddress the presence of homeless people in public places." 5 Sadly,these initiatives do not provide solutions, only displacement. As re-counted in Time magazine, "New York's clampdown on vagrancy inTimes Square, for instance, has merely pushed the encampments tothe edges of the island of Manhattan.'06Some advocates maintain that the middle-class is "fed-up" withthe homeless and that mainstream Americans have decided that thehomeless are responsible for their own fate.'" Others attribute thelack of fervor that now surrounds the issue not to public opinion butto politics:In the '80s, liberal advocacy for the homeless was of a piece withDemocratic outrage at Reagan administration policies toward thepoor. But the homeless issue also splintered urban liberalism,sending some working and middle-class voters into the arms ofRepublicans who vowed to curtail entitlements and tighten thescrews on vagrancy. To survive, Democrats revised their image asthe party of the dispossessed by acceding to welfare reform, cut-ting aid to the homeless and courting the middle class. As liberalsdrifted toward the margins of the political landscape, so did thehomeless. I"What is to be done? Over the past six years, the Clinton admini-stration has devoted funds to "continuum of care" programs aimed atproviding temporary housing, job training, and mental health care.19A number of advocates for the homeless find this emphasis mis-placed, however. Instead, they maintain that the most essential solu-tion to the problem is to increase the supply of affordable housing.2015 Maria Foscarinis, Downward Spiral: Homelessness and its Criminalization, 14 YALEL. & POL'Y REv. 1, 2 (1996); see alsoJuliette Smith, Arresting the Homeless for Sleeping inPublic: A Paradigm for Expanding the Robinson Doctrine, 29 COLUM. J.L. & Soc. PROBS.293, 293 (1996) ('In recent years, at least thirty-nine American cities have initiatedor continued policies that criminalize activities associated with homelessness ....When a city lacks sufficient shelter space, these 'anti-sleeping ordinances' force thehomeless into a no-win situation."); Robert C. McConkey III, "Camping" Ordinancesand the Homeless: Constitutional and Moral Issues Raised by Ordinances Prohibiting Sleep-ing in Public Areas, 26 CUMB. L. REv. 633, 639 (1995-96) (passing on constitutionalityof such ordinances).16 Ratnesar, supra note 1, at 30-31.17 See id. at 31. Time magazine quotes Ralph Nunez, president of Homes for theHomeless, as stating that, "People decided that homeless people were affecting theirquality of life .. and they got fed up." Id.'8 Id. at 31.19 See id.20 See Foscarinis & Scheibel, supra note 3, at 44. ("The national shortage of af-fordable housing is a leading cause of homelessness."); see also Curtis J. Berger, Be-yond Homelessness: An Entitlement to Housing, 45 U. MIAMI L. REv. 315, 321 (1991)("The systemic housing issue of the 1990's is affordability."); Margarie Turner, Home-1999] 1463SETON HALL LAW REVIEWIn New York, for example, "80% of homeless families who have beenprovided with subsidized apartments have remained intact, out ofshelters and off the streets, regardless of their other problems."0' TheNational Coalition for the Homeless concurs, finding that "the twofactors most responsible for the rise in homelessness over the past 15to 20 years are the growing number of people living in poverty andthe shortage of affordable rental housing."" If the answer is indeed"housing, housing, housing," how and when will the country take theidea seriously?As academicians, scholars, lawyers, and law students, we need tobe talking more about the issues,23 citing the statistics, and coming toa consensus on an agenda for reform. Here are some sobering fig-ures: According to the United States Census Bureau, by 1996, thenumber of desperately poor people living in the United Statesjumped to 36.5 million. 4 Of those 36.5 million, 40% were children.5For those in this income bracket, the choice each month often comesdown to rent or food. Since it is estimated that even the most modestrental housing demands that the tenant earn at least eleven dollarsper hour,26 considerably more than the minimum wage, the cost ofhousing becomes not just prohibitive, but impossible. Indeed, onerecent editorial noted that "[i]t is more than ironic that even in thisperiod of unprecedented economic growth, many people are only apaycheck away from living on the street. It is tragic.2 7It seems beyond dispute that new public and private initiativesare needed to increase the availability of affordable housing:Specific policies should depend on local needs. In areas wherehousing units exist but are not affordable to low-income people,lessness and Affordable Housing in the United States, 34 How. LJ. 71, 71 (1991) ('In ac-tuality, people are homeless because there are not enough inexpensive housingunits.")21 Ratnesar, supra note 1, at 31.Seeking a Home. Women, Children Comprise Majority of Homeless Here; CoordinatedHelp Needed, INTELLIGENCERJ. (Lancaster, Pa.), Dec. 16, 1998, at A16 [hereinafterSeeking a Home].23 See, e.g., S. Lynn Martinez, An American Vision: The Right to Shelter, 12 IN PUB.INTEREST 1, 2 ("Notwithstanding the issue of whether a right to housing exists, a con-stitutional right to shelter - to temporary emergency shelter - needs to be recog-nized in order to begin to repair the dilemma of the homeless.")24 See Seeking a Home, supra note 22, at A16.25 See id.26 See id.Id. Forty percent of those living below the poverty line "spend seventy percentor more of their income on housing. This means that for growing millions ofAmericans, a missed paycheck, a health crisis, or a high utility bill could bring thethreat of homelessness." Foscarinis & Scheibel, supra note 3, at 44.1464 [Vol. 29:1461HOUSING AND HOPE SYMPOSIUMsubsidies such as housing vouchers should be provided to makethose units affordable. In areas of the country where there is ashortage of decent housing, new units should be developedthrough a combination of federal incentives such as tax creditsand direct federal funding. Federal subsidies should be coupledwith measures to control costs, such as limiting rents to actuallandlord expenses plus a reasonable rate of profit. New units cre-ated through direct federal aid should be held by public or pri-28vate nonprofit entities.Homeless advocates add that "[u]sing vacant property should be atop priority."" Significantly, the federal Homeless Housing Assis-tance Act sm mandates that unused federal buildings and land be usedto help the homeless. Proactive, multi-faceted governmental re-sponses to homelessness now being launched in some cities offercause for hope. For example, in 1993, Dade County, Florida, im-posed a 1% meal tax on restaurants grossing more than $400,000 peryear." The millions raised annually provide assistance to the county'shomeless, affording shelter, housing, support services, and job train-ing.32 Closer to home, in Bergen County, New Jersey, officials areseeking to build a "one-stop center" for the homeless in Hackensack.The center would provide meals, job-placement services, medical re-ferrals for treatment of substance addiction and mental illness, aswell as shelter."3As members of academia, and particularly for those of us whoteach Property, it is important that we remain mindful of the"terrible human, social and economic costs"s of homelessness andcultivate in our students an awareness of the same. We should be ex-amining critically the various initiatives proposed by advocacy groups,challenging efforts aimed at neatly sweeping the problem away (bothfiguratively and, sadly, literally), and encouraging pro bono efforts inthis arena.3 5 As educators, we must be concerned with facilitating and28 Foscarinis & Scheibel, supra note 3, at 44-45.2 Id. at 45.42 U.S.C. § 11431 (Supp. IV 1992).s1 See Foscarinis, supra note 15, at 61.32 See id.ss See Paul Rogers, Helping the Hard-Core Homeless, Bergen Officials, Advocates SeekNew Center, THE REcoRD (Hackensack, N.J.), Sept. 27, 1998, at NOL. See generallyCraig M. Fullen, Note, A Home Away from Home: An Analysis of a State's Duty to ProvideServices to Nonresident Homeless, 23 RUTGERS L.J. 117, 132-36 (1991) (citing the needfor an integrative approach to homelessness.)s4 Foscarinis & Scheibel, supra note 3, at 46.35 See generally Linda S. Dakin, Homelessness: The Role of the Legal Profession in Find-ing Solutions Through Litigation, 21 FAM. L.Q. 93 (1987); Robert Hayes, Litigating on1999] 1465SETON HALL LAW REVIEWnurturing the development of integrated practitioners, whose com-mitment to success is linked inextricably to the commitment to serv-ing communities and constituencies in crisis. Today's symposiumpresents just such an opportunity. We will hear from leaders in thefields of housing discrimination, lending discrimination, land-lord/tenant reform, and homelessness.Our program is aptly titled "Housing and Hopi' because, notwith-standing all that remains to be done, there is cause for optimism.The fact that this auditorium is filled to capacity is a good sign. Ourwillingness to learn of the issues and then find ways to serve suggeststhat at the least we are asking the right questions, mindful that thereis no such thing as living a neutral life. As attorneys and lawyers-in-training, each of us is in a position to work on behalf of those withouta voice - the disenfranchised, the powerless, the desperately poor.Let us proceed then to define our mission carefully as well as might-ily.Karl Llewellyn observed that "' [c]ompassion without techniqueis a mess; and technique without compassion is a menace. ' 36 Wis-dom and compassion are indivisible. The integration of both virtuesis a reminder that we are the custodians of the larger community'sethical sense and its greatest hope for the attainment of equal accessto justice. It is up to us to serve that community, and to devise incen-tives and systems to help others to follow suit.Behalf of Shelter for the Poor, 22 HARV. C.R.-C.L. L. REv. 79 (1987); K Scott Mathews,Rights of the Homeless in the 1990s: What Role Will the Courts Play?, 60 UMKC L. REV.343 (1991); Deborah M. Thompson, Breaking the Cycle of Poverty: Models of Legal Advo-cacy to Implement the Educational Promise of the McKinney Act for Homeless Children andYouth, 31 CREIGHTON L. REv. 1209 (1998).Roger C. Cramton, Beyond the Ordinay Religion, 37 J. LEGAL EDuc. 509, 509(1987) (quoting Karl N. Liewellyn).1466

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