As the city seeks the power to evict homeless families from the shelter system for 30 days when they engage in gross misconduct or turn down housing offered to them, Mayor Bloomberg will be able, if he wants, to benefit from remembering the mistakes of the past before he makes any new ones. The history of homeless policy in New York City is littered with consent decrees and court orders which have placed an ever-increasing burden on the city as it attempts to deal with the problem of people seeking shelter. Mr. Bloomberg can’t do much to avoid baseless new court orders — judges intent on legislating from the bench will do so, leaving the city little recourse within our state’s activist courts. However, Mr. Bloomberg can refuse to create new apparitions that will animate these decisions and haunt him and future mayors as those of the past bedevil him.

As the New York Post put it in a wonderful editorial yesterday, New York City is “under court order to run the nation’s most bizarre program for the ‘homeless.'” What the Post doesn’t note, however, is that the court orders in question are inextricably linked to moves the city made voluntarily. It was in 1981 that Mayor Koch signed onto a consent decree in the case of Callahan v. Carey, filed on behalf of an alcoholic who lived under the East River Bridge, that established a right to shelter for all homeless men in New York City and set out minimum health and safety requirements for homeless shelters, right down to an appendix dictating space, toilet, and shower requirements and mandating the availability of payphones and recreational activity. While the deal might have seemed the best that could be worked out with the homeless advocates at the time, that consent decree served as a ratchet to raise the bar for the city a number of times.

In 1983 a lawsuit called Eldredge v. Koch was brought on behalf of homeless women at New York City. A trial court ruled that shelters for women at the time did not meet the requirements set forth in the Callahan consent decree and thus violated the women’s equal protection rights under the federal Constitution. This despite the fact that the shelters in question had been converted from a hospital, a day care center, and an armory and therefore did not necessarily fall under as strict requirements. The case went through more legal wrangling, but ended up with the women’s shelters being brought under Callahan. In 1986, in McCain v. Koch, a lawsuit brought by the Legal Aid Society on behalf of homeless families, the decree in Callahan was expanded to families with children. It was also in this case that the city was barred from allowing families to stay in welfare offices when shelter can’t be found, on the basis that such stays are harmful to children.

The Callahan decree has also prevented the city from getting even the slightest bit tougher with those attempting to abuse New York’s shelter system. In 1996, Mayor Giuliani asked the state for new regulations requiring those seeking shelter to prove they need shelter and accept referrals for drug treatment and job training. This all ought to have been interpreted as consistent with Callahan’s authority to “establish regulatory standards governing the administration of public assistance.” But in 2000 this was held in violation of Callahan’s right to shelter. The ruling was by Justice Stanley Sklar of the State Supreme Court in Manhattan, who is responsible for enforcing the decree.

Even the current issue of paying contempt fines to families has its genesis in a consent decree entered into by Mr. Giuliani to pay automatic contempt fines to families who were not placed in a shelter on the same day they requested it. While we understand that Mr. Bloomberg may be eager to come to terms with the nettlesome homeless advocates — the current deal that might be made revolves around a proposal that Mr. Koch made years ago to have families stay in the apartments they are trying to reject until a hearing has been held — all the precedents warn him to be careful. No deal will ever satisfy the advocates. Any inch of ground he gives in negotiating will be used to launch attacks and fend off progress in the future. At some point it will make sense for the mayor to stand up and fight it out in the courts.