Gotham Gazette

The Place for New York Policy and politics



Calling Trump’s Big Lie What It Is

nypd via nypdrecruit

(photo: @NYPDRecruit)

Upping the immigration deportation ante, a San Francisco federal judge found “irreparable harm” and ordered a national preliminary injunction blocking President Donald Trump’s threat of cutting off law enforcement funds to “sanctuary cities” that defiantly refused to comply with his deportation policy.

Under the proposed Trump policy, cities would lose funding if undocumented and even legal immigrants are not reported to federal authorities for deportation after being charged with low-level criminal offenses, such as disorderly conduct, possessing small amounts of marijuana, or a variety of non-violent, “broken windows” offenses.

Although federal law mandates deportation of noncitizens convicted of serious crimes, Trump’s executive order promulgates a simplistic view of “let’s kick them out” because all undocumented immigrants, non-citizen Muslims, or anyone overstaying a visa, “present a significant threat to national security and public safety and the presence of such individuals in the United States...are contrary to the national interest...[causing] immeasurable harm to the American people and to the very fabric of our Republic.”

This Trumpian misinterpretation of constitutional law is a giant step backward reshaping the country’s immigration policy by diminishing civil liberties, due process, and constitutional protections, which for more than 100 years were guaranteed by our federal courts even to those who are illegally in the U.S.

But threats have been elevated to the big lie.

Trump’s press secretary, Sean Spicer, in an over-the-top and uninformed response to the court’s decision to block defunding, shouted that it was an “egregious overreach by a single, unelected district judge.”

Spicer should read the Constitution -- federal judges are appointed pursuant to Article 3, by the President -- as should Trump.

He accused “sanctuary cities” such as New York of "putting the well-being of criminal aliens before the safety of our citizens" and says city officials who authored policies protecting people living in the country illegally "have the blood of dead Americans on their hands...a gift to the criminal gang and cartel element in our country" that puts "thousands of innocent lives at risk."

This is the big lie, but Spicer is not the only Trump perpetrator.

On April 21, Attorney General Jeff Sessions declared in an official DOJ memo that New York City “soft on crime” and it “continues to see gang murder after gang murder,” blaming the city for failing to turn over to federal immigration authorities for deportation a gang member who was released from Rikers Island after a conviction of a non-serious misdemeanor.

The truth is New York City is a national success story of driving crime down over the past 20-plus years – especially violent crime. The president, a New Yorker, knows this. However, accepting this fact means superseding political grandstanding, and acknowledging that New York’s fight against violent and especially gang crimes have occurred with great success and has continued during Trump’s first 100 days.

Since Trump’s inauguration, the NYPD and the city’s District Attorneys have prosecuted gangs and others violent criminals, refuting Session’s big “soft on crime” lie. (Sessions did walk back some of his criticisms after major blowback from NYPD Commissioner Jimmy O’Neill and others.)

March 9, the Queens D.A. and NYPD arrested six members of the ABK street gang for plotting to kill two rival gang members and 11 individuals affiliated with the ABK for selling drugs in Queens neighborhoods.

March 15, the Bronx D.A., NYPD, and federal law enforcement officials charged 49 members of two Bronx drug distribution organizations with narcotics, robbery, firearms offenses and murder.

March 22, the Manhattan D.A. and NYPD charged six men, ages 19-22, as part of a firearm ring for trafficking 105 guns from South Carolina into New York City.

March 28, the Staten Island D.A. and NYPD announced the “takedown” of a heroin distribution ring that operated on the South Shore of Staten Island.

April 18, the Brooklyn D.A. announced four gang members were sentenced to 25 years to life for robbery and murder.

Although the federal courts sent a clear message to Trump that airport detentions, religious profiling, and now defunding threats are unconstitutional, this president does not accept that our nation’s history of protecting individual freedoms no matter one’s race or religion – or how one entered the United States – that our country was not founded on threats, unlawful, odious executive orders, or the big lie.

Arnold N. Kriss is a Manhattan attorney who formerly served as a Brooklyn Assistant District Attorney and Deputy Commissioner of Trials in the New York Police Department.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

A New Approach to Police Body Cameras

tucker body cam

NYPD's Ben Tucker with a body camera (photo: @NYPDnews)

After many months of waiting, the New York City Police Department recently announced its proposed rules for the use of body worn cameras. The NYPD developed the policy in response to a mandate by the federal court in the  Floyd v. City of New York “stop and frisk” case. To their credit, the NYPD, with the help of the Policing Project at NYU Law School, undertook an extensive public comment process to solicit input from experts, interest groups, members of the public, and police officers. Twenty thousand members of the public and 5,000 police officers sent in survey responses.

Unfortunately, many of the suggestions that emerged during that process were not included in the final NYPD policy, leading the lawyers in the Floyd case to pledge that they would move to block approval of the new rules by the court.

The main objections are that officers would have access to footage before making statements about what happened in an incident, the lack of privacy protections for those captured on video, and too much officer discretion as to when the cameras should be turned on. In addition, unions representing police sergeants, detectives, and lieutenants have threatened to fight the new rules in court because they were not consulted about their new roles in overseeing the process. Only patrol officers will wear the cameras.

Perhaps it’s time then to hit the reset button on our approach to this new technology. Body cameras produce a profound tension between our desire to enhance officer accountability and our concerns about the growing surveillance powers of the police.

The killings by police of Michael Brown and Eric Garner ushered in a wave of popular support for body worn cameras as a singular tool for improving police accountability. The hope is that the existence of video evidence will act as a deterrent to police misconduct and allow for easier prosecution of officers who abuse their authority. Expanded use of such cameras was a central recommendation of President Obama’s Task Force on 21st Century Policing and has been embraced by police accountability activists and civil rights organizations across the U.S.

Despite this strong support, there remain significant privacy concerns. In New York City alone there will soon be over 20,000 officers on patrol with cameras. These cameras will likely record millions of mundane interactions with the public as well as capture the activities of people merely going about their daily lives. Some of these people may be engaged in lawful activities that they would prefer their neighbors, employers, or the government were not aware of, such as visiting an Alcoholics Anonymous meeting, attending a political event, or entering an adult book store.

In addition, extensive use of the cameras could contribute to an expansion of police surveillance capacity. By geocoding camera data, new databases could be established that allow police to review all footage from a designated area before or after a crime, potentially subjecting thousands of people to unwarranted intrusions into their lives merely because of where they live or work. Law professor Elizabeth Joh refers to this as an increase in “surveillance discretion” in which police have dramatically more potential reasons for looking into someone’s personal life based on suspicion rather than concrete evidence of wrongdoing.

Such “big data” endeavors turn innocent behavior into suspicious behavior because of correlations on a grand scale that may have absolutely no relevance to a specific individual now brought under investigation. For example, if there is a belief or evidence that drug dealers are more likely to frequent a particular park or corner and I happen to also regularly walk that way while going to work, then I can easily end up under suspicion.

Police would also be in a position to populate gang databases and political dossiers using camera footage in high crime areas or at political demonstrations. This effort could be aided by emerging facial recognition software. There is a long history of police misusing such databases. Gang databases are notoriously easy to end up in and near impossible to get out of. They have been used to target people for gang injunctions resulting in enhanced penalties. There have even been cases where they have been shared with current or prospective employers. There is a long history of local police maintaining political intelligence files with the names and images of individuals engaged in totally lawful political activity. These databases have also been shared with employers and resulted in politically motivated harassment.  

Camera footage of people walking down a particular street or lawfully interacting with friends or neighbors could also be used to populate databases of people considered at high risk for committing violence. Several major cities including Chicago and New York use these databases to produce “heat lists,” based on complex algorithms of potential risk factors such as prior arrests or involvement with child welfare systems. Being on such a list can trigger intensive surveillance or enhanced prosecutions.

Raw footage and databases that rely on the footage could also be shared with other law enforcement agencies such as Immigration and Customs Enforcement, the Drug Enforcement Agency, or the FBI. These agencies then might feed this data into their own algorithms triggering yet more surveillance, suspicion, and investigations based entirely on probabilities rather than individualized probable cause or reasonable suspicion.  

So what is to be done?

One way to reduce concerns about this enhanced police surveillance would be to take control of the footage away from police and hand it over to an independent civilian agency. From the moment officers download the data it would be under the control of such an agency and could not be reviewed, released, or altered by the police without probable cause.

If police feel there is something relevant to a legitimate investigation they can request a warrant to access it. Since the officer was present at filming, meeting the standard of probable cause should be easy in cases where criminal behavior is alleged. Similarly, police misconduct oversight bodies would need to have a sworn complaint in hand before they could review footage.

Following the guidance of the ACLU and the Constitution Project, there should also be tight restrictions on public access to the video. Footage should only be made available to the public with the consent of those seen in the video (or family members of someone deceased) or if there are no privacy issues at stake, which might be accomplished with extensive redaction. Individuals who are the subject of police action captured by body cameras should have the right to review it.

These tight privacy controls would help reassure the public that their non-criminal interactions with police will not be reviewed by police or the public. This is especially important for people who are victims of or witnesses to a crime or who may want to informally or anonymously provide police with information (these groups are not supposed to be recorded by the NYPD under the new rules).

Such a policy would also help overcome the legitimate concern of police officers that cameras should not be used to monitor them for administrative violations or be used for vendettas by supervisors. By taking control of the footage away from police, the chances of such personally or politically motivated reviews would be greatly diminished.

Placing the footage under the control of an independent agency would also ensure that defense attorneys and prosecutors have equal access to it. Currently, district attorneys are at an advantage as they receive evidence directly from the police and make their own determinations about whether something is relevant to the case and if so, when to give it to defense counsel. According to representatives of the public defender services here in New York, such evidence often only materializes the day before or the day of a trial, forcing many to take plea deals or be unprepared for trial.  

We must keep in mind that the primary basis for public support of body cameras is the need for increased police accountability. In the words of Michael Sisitzky of the New York Civil Liberties Union, “Public support for body cameras will not last if the technology becomes just another gadget to help police and prosecutors, instead of a tool for meaningful reform of police practices.”

Alex S. Vitale is Associate Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of City of Disorder: How the Quality of Life Campaign Transformed New York Politics and the forthcoming The End of Policing.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

De Blasio and Homelessness: A New Progressive Mayor Wrestles with an Old Social Problem

de Blasio Banks homelessness

Mayor de Blasio & Commissioner Banks (photo: Michael Appleton/Mayor's Office)

This is part one of a three-part series.

Part One: The Challenge of Homeless Policy
During the course of his overwhelmingly successful campaign for mayor, Bill de Blasio made poverty and income inequality his main issues. As the liberal journalist and fervent de Blasio supporter Eric Alterman put the matter, “De Blasio made economic inequality the central issue in his campaign and attempted to tie nearly every issue he addressed to that problem.” Homelessness was obviously such an issue, and so when de Blasio took office in January 2014, expectations were high that he would address that problem effectively.

The Way Things Are Now
Unfortunately, as of April 2017, under the mayor, the homelessness problem had, by some important measures, gotten worse. The month de Blasio assumed office there were 53,615 people in the Department of Homeless Services (DHS) shelter system. That number has hovered around 60,000 people since December 2014. The annual enumeration of street dwellers—the HOPE count—is down from 3,537 people in 2014 to about 2,794 in 2016, which is a positive trend but not a dramatic improvement. And the DHS budget remains high: $1.29 billion for the current 2017 fiscal year.

De Blasio himself recently admitted that the city has not made nearly enough progress, while announcing another new homelessness-fighting plan and creating new, unambitious goals for reducing the homeless population. Voters and other observers are not impressed. Surprisingly, given the emphasis de Blasio put on poverty and homelessness in his campaign, a March 2017 Quinnipiac University poll found that voters rated this the weakest aspect of the mayor’s performance, with 55 percent disapproving. And The New York Times editorial board, which supported de Blasio’s mayoral run, recently concluded, “The rise in homelessness is arguably the mayor's biggest failure in that goal to close the gap between the haves and the have-nots.”

How did the mayor end up in this position, and what is he doing about it?

How We Got Here
To put de Blasio’s situation in context, we have to go back to 2004, when Mayor Bloomberg developed a five-year plan to “make the condition of chronic homelessness effectively extinct in New York.” Preventing homelessness would be emphasized through a “Home Base” program that would intervene with at-risk families to keep them housed. Analysis would show that Home Base did lower homelessness and even paid for itself.

More supportive housing—that is, apartments with services for the mentally ill and other disabled street dwellers—was to be developed. This goal was accomplished in 2005, when the city and state signed the third in a series of “New York/New York” agreements, which produced 9,000 such units. Under the “Housing First” philosophy, street dwellers would be moved into supportive housing as quickly as possible, an approach that both reduced street homelessness and encouraged enrollment in rehabilitative services. Shelter use was to be cut by rehousing long-term shelter stayers. And, very importantly, shelter clients were to be moved out through rent subsidies, which, a key document noted, “must continue to be available in shelter to re-house chronically homeless individuals and families.”

Bloomberg pledged to reduce the shelter census—36,399 people in June of 2004—by two-thirds in five years, to about 12,000 persons by 2009.

On October 19, 2004, DHS abandoned its long-term policy of giving shelter residents priority for entering public housing and for federal Section 8 rent vouchers, which were forms of housing subsidies. Commissioner of DHS Linda Gibbs believed that policy attracted poor families into the shelters to receive the subsidies and so drove up the census. But moving one family out of the system with a subsidy meant the census would go up only if subsidies also drew in more than one new family. But economists found that to draw one family into the system requires placing seven families into subsidized housing. Perverse incentives are real but too weak to drive up the shelter census. Nonetheless, shelter families lost preferential access to public housing and Section 8 vouchers; instead, they were eligible for a temporary five-year rent subsidy, Housing Stability Plus. This system was then replaced in 2007 by Advantage, a two-year-maximum rent-subsidy program funded jointly by the state and the city.

By Bloomberg’s deadline of June 2009, the shelter census had not dropped appreciably. Then, as a result of a falling out between the city and the state over funding amid the unraveling financial crisis, Advantage ended. At that point no subsidies of any kind were offered to move families out of the shelter system. The number of people in the DHS shelter system began going up, and in January 2014 de Blasio inherited a record high shelter census.

De Blasio’s challenge was to create a new rent subsidy, implement it effectively, do nothing to encourage shelter entries, and hope for a decline in the census. How well did he meet that challenge?

De Blasio’s First Steps
First, the new administration made striking changes in personnel as well as policy. Steven Banks, the Legal Aid lawyer who since 1983 had litigated against the city for the right to shelter for homeless families, became commissioner of HRA, which runs public-benefit programs including rent subsidies. Lilliam Barrios-Paoli, a former Catholic nun who served in the city’s social service bureaucracy under Koch, Giuliani, and Bloomberg, became deputy mayor for Health and Human Services. And Gilbert Taylor, formerly executive deputy commissioner for the Administration for Children’s Services, was appointed commissioner of the Department of Homeless Services.

The new administration’s biggest initiative in homeless policy is the Living in Communities (LINC) programs, which are a batch of rental-subsidy programs designed to help various sorts of shelter clients move out of the system. But the new programs had implementation problems. Getting LINC started required cooperation from New York State and thus between de Blasio and Governor Cuomo. The necessary small adjustments were not accomplished in a timely manner. LINC did not get fully up to speed until December 2014, and the nonpartisan Independent Budget Office concluded that “the homeless shelter population has remained stubbornly high this year. This is largely due to a slower than anticipated start to the LINC rental assistance programs.”

The ongoing Cuomo-de Blasio turbulence also delayed the development of more supportive housing. Supportive housing provided through the New York/New York agreements is one of the great successes in homeless policy and has been demonstrated to keep the disabled off the streets and reduce the cost of their care. The last of these agreements was signed in November 2005, and by 2014 most of its units were occupied. Thus, many homeless people remained on the streets, where they attracted the attention of unsympathetic media and the general public and fostered the perception of a homeless crisis. In fact, despite the declining street homeless population documented by the HOPE count, the March 2017 Quinnipiac poll reported that 54 percent of city voters believed that they were seeing more homeless people on the streets and in parks and subways than they did a few years ago.

The de Blasio team made a big misstep when in 2015 it decided to halt development of new shelters for eight months due to community opposition. When the delayed LINC program did not reduce the shelter census, the city was forced to rely on various unsatisfactory stopgaps to put up homeless clients.

Cluster Sites
One such stopgap is the cluster site program, which was initiated by the Bloomberg administration and harshly criticized by de Blasio before he became mayor. Under this program, DHS rents out a “cluster” of private apartments to shelter homeless families. Private landlords own the apartments while nonprofit providers under contract with DHS provide the families with services, and the buildings have a mix of homeless families and private rent-paying tenants.

The cluster site program is a policy disaster. It is premised on putting shelter families in apartments that would otherwise have gone to still-independent families, thus making an already tight low-income housing market even worse. And cluster site apartments are of poor quality. In March 2015, the Department of Investigation (DOI), which is a non-mayoral agency, released a scathing, 180-page report on family shelters that focused mostly on cluster site apartments.

The DOI report found DHS’ cluster sites to be “poorly monitored” and said that they “provide the least adequate social services to families.” Among the issues were rodent infestations, fire safety code violations, defective window guards, a lack of furniture, and units in need of major repair. Landlords can charge three times the market rent for such low-quality apartments.

Moreover, as the buildings are privately owned, DHS is unable to monitor who is using the apartment, security guards cannot screen guests, and there are many unauthorized visitors. Assaults, prostitution, gang activity, and other crimes are frequent. DHS is even renting from landlords who are on the Public Advocate’s list of the city’s 100 worst landlords. Well before he became mayor, de Blasio was aware of these problems and pledged to end the use of cluster sites. But his moratorium on building new shelters and continuing high demand left him unable to do so. Given the vastness of the cluster site program—3,000 families—improvement will take years.

Commercial Hotels
De Blasio inherited the cluster site program from Bloomberg, but is himself responsible for reviving the old and unfortunate practice of placing shelter system clients in commercial hotels. In the late 1980s, the common practice was to place homeless families in private, for-profit “welfare hotels” where conditions were infamously bad. Eventually the federal government refused to fund these hotels, and the practice was curbed.

But because of increased demand, de Blasio has had to return to using commercial hotels. Unlike with traditional, “Tier II” shelters, use of commercial hotels does not require community board notification, for the city is able to claim that it is not actually opening up a “facility,” but merely renting out hotel rooms. DHS has to make sure its clients maintain a low profile in these hotels to avoid protests from other guests.

Further, providing social services in a private facility is difficult. DHS clients in commercial hotels, although they may like the relative independence hotels offer compared to Tier IIs, are thus less likely to receive the necessary assistance to obtain permanent housing. Also, security at the hotels is poor. Visitors are not monitored and only recently have security guards been stationed at hotels. In February of 2016, there was a triple homicide at the Staten Island Ramada Inn. A man murdered his girlfriend and her two children, one of whom was his own. Had this hotel had the same security and monitoring that is provided in Tier II shelters, it is unlikely that this tragedy would have occurred.

This is part one of a three-part series.
Read Part Two: Setbacks and Responses
Skip to Part Three: Can de Blasio Turn the Tide on Homelessness

by Peter Nasaw and Thomas J. Main. Nasaw, MPA, LMSW, is an expert on homeless policy who has worked in the social services for several years. Main is a professor at the School of Public and International Affairs, Baruch College, City University of New York and author of Homelessness in New York City: Policymaking from Koch to de Blasio.

De Blasio Wrestles with Homelessness -- Part Two: Setbacks and Responses

de Blasio Banks McCray homeless shelter

Mayor de Blasio & aides visit a shelter (photo: Michael Appleton/Mayor's Office)

This is part two of a three-part series, De Blasio and Homelessness: A New Progressive Mayor Wrestles with an Old Social Problem, by Peter Nasaw and Thomas J. Main. [Jump to Part One: The Challenge of Homeless Policy]

Part Two: Setbacks and Responses
The new administration was set back when Barrios-Paoli, a seasoned administrator and voice of moderation, left just 20 months after she had joined with much fanfare. Moreover, Gilbert Taylor did not work out as DHS commissioner and stepped down on December 15, 2015. Thus, for about the first two years of his administration, while he was being battered in the press and in public opinion over the issue of homelessness , de Blasio tolerated the presence of an ineffective point person on this crucial issue. With Taylor’s departure, HRA Commissioner Banks took temporary charge of DHS.

Thus, by mid-December 2015, city homelessness policy was perhaps not in crisis but certainly less than optimal.

Responsibility was widespread. Bloomberg failed to follow up on promising beginnings, eliminated housing subsidies, and drove up the shelter census. Candidate de Blasio underestimated how difficult a reversal would be. The conflict between de Blasio and Cuomo delayed the renewal of rent subsidies and kept the shelter census higher than it would have been. The feud also put off a fourth New York/New York agreement, leaving the city with few supportive housing units for unsheltered mentally ill people, who remained on the streets to be seen by all. The mayor responded slowly to the resulting media flap. Putting off building or opening new shelters forced the city to rely on cluster sites and commercial hotels. Turmoil and turnover in city leadership hurt. If de Blasio was to prove that a progressive could govern New York City, he would have to pick up his game, and he tried to do so.

Street Homelessness and Supportive Housing
To deal with the perception that street homelessness was out of control, the administration introduced the Home-Stat program. Sixty workers from the Mayor’s Office of Operations now patrol Manhattan streets and call in sightings of homeless people to the city’s nonemergency phone number, 311. Funding to private outreach nonprofits will be increased so that they can expand their street outreach teams from 175 to 312 workers and thus be able to respond to 311 calls within one hour. The Police Department will redeploy 40 officers to its Homeless Outreach Unit. Two extra mini-counts of homeless people living on the street will be done each year for a total of four yearly counts. The idea is to identify street homeless individuals quickly and bring them to shelter rapidly. It may also be that the administration finally realized that more frequent and more accurate enumerations of street homelessness will be likely to rebut the belief that this population has exploded.

Further, it seems that a way around the Cuomo-de Blasio impasse, as it concerns supportive housing, may have developed. There is still no New York/New York IV agreement, but there is what might be called a New York/New York IV disagreement. In his State of the State speech of January 13, 2016, Governor Cuomo announced plans for the state to develop 20,000 supportive housing units over 15 years. Earlier, de Blasio had announced the city was moving forward without the state and pledged that the city would develop 15,000 supportive units over the same period.

In other words, since the mayor and governor cannot get along well enough to sign a formal agreement, each will undertake part of the job on his own. Supporters of a New York/New York IV had been calling for 30,000 more units and are pleased that in sum the city and state plan to create 35,000 units. The New York/New York agreements were strikingly successful ventures in intergovernmental cooperation, so it is a pity that that process has apparently been abandoned for largely personal reasons. No one knows yet whether the lack of a formal agreement will prove to be a problem.

HRA/DHS Integration
A key part of the effort to get on top of the homelessness issue was the partial re-merger of DHS with HRA. Homeless services were spun off from HRA in 1994. In April of 2016, a 90-day review authored by City Hall with the help of outside management consultants PriceWaterhouseCooper argued that having two different agencies provide services to largely overlapping populations was inefficient. The mayor’s solution was to have both HRA, which runs subsidies, and DHS, which runs the shelters, report to Banks, who was now dubbed commissioner of social services. The review projected $38 million in savings from the combined management structure.

But this partial merger may not be a good idea. As an independent agency, DHS was able to communicate and bargain with other city entities. Most homeless services are performed not directly by DHS, but by contracted providers, who are generally not enthusiastic about the new arrangement. Most providers prefer to deal with a small agency focused on their specific issue rather than a very large but possibly more powerful super-agency. Bureaucratic coordination via consolidation is rarely achieved in America’s fragmented administrative system. Agency effectiveness is more likely to be achieved by smaller, mission-driven organizations. But if the new, better-integrated structure is to work, the mayor needs to get serious about it: so far, no new head of DHS has been appointed.

Housing Subsidies and Their Limitations
Another problem for the de Blasio administration is that the LINC subsidies did not have as much of an effect as was hoped, at least through 2015. According to a report from the Independent Budget Office, as of December 2015, the program was unlikely to meet its targeted goals. Although new data are yet to be made available, there remain concerns about whether enough landlords will accept city-funded housing vouchers.

Analysts believe that since the end of Advantage, housing prices have risen, and so LINC vouchers are too paltry (between about $1,200 and $1,550 depending on household size). Also, many of the very apartments that would be assigned to LINC voucher-holders are still being used as cluster site units.

De Blasio’s other housing voucher program is CITYFEPS. FEPS stands for Family Eviction Prevention Services, and is designed for families that have experienced eviction. The program guarantees four months of rent upfront to incentivize landlords to rent to homeless families. The CITYFEPS vouchers provide the same support as LINC vouchers.

But the FEPS program has serious problems. Apartments that participate in housing subsidy programs—including Section 8, NYCHA, and LINC—are inspected by the city Department of Housing Preservation and Development (HPD) in order to meet federal standards for habitation. However, CITYFEPS units are not inspected by HPD. According to an HRA spokesperson, “For CITYFEPS, not-for-profit service providers generally do an assessment of the units, including a walk-through of the units.” But providers are judged by DHS partly by the number of families they place in independent apartments. Underperforming providers are at risk of losing their contract. So providers have an interest in approving apartments that can undermine their objectivity.

The HPD inspection process is time tested; their inspectors are trained and regulated, and there are rules in place to prevent conflicts of interest. CITYFEPS apartments need to be inspected by HPD in order to protect vulnerable families from being exploited by unscrupulous landlords. Allowing potentially self-interested shelter providers to inspect FEPS units is incautious and likely to provoke criticism when it comes to light.

The Eligibility Process
A major factor that has driven demand, but has rarely been spoken about in public, is the eligibility process for families that apply to shelters. The city must direct scarce housing resources to those who are most in need, and the eligibility process is designed to keep out all but the most needy families.

The city shelter system is regulated by the state welfare department, the Office of Temporary and Disability Assistance (OTDA). In December of 2015, OTDA issued a new regulation that drastically loosened eligibility rules. Very often, families applying for shelter had previously been living in an apartment leased to a family member or friend. Essentially, the new administrative directive made it much easier for the primary tenant of an apartment to refuse to let a family applying for shelter return to the apartment where it had been staying.

Often, prior housing history, public assistance records, and close family ties would show that despite the primary tenant’s refusal, the applicant was in fact lawfully permitted to reside at the address of origin. With the new rules, any applicant who told eligibility specialists that they were not allowed to return to their former apartment would more likely be found eligible for shelter. In effect, the primary tenant now had a greater power to evict family members than did the city marshal.

According to the Coalition for the Homeless, “the 2015 change in policy resulted in a decrease of the percentage of families denied shelter.” No doubt many needy families now received shelter, but the census was also driven up. Whether this was on balance a good deal may be doubted. In any case, almost one year later, in December 2016, a new OTDA regulation allowed the city to re-tighten eligibility standards.

In effect, eligibility standards were loosened, more families were found eligible, the shelter census went up, and then the standards were tightened again. Fiddling with the eligibility standards at the very time when the new rent-subsidy programs were supposed to drive the shelter census down was probably not a good idea.

This is part two of a three-part series.
Read Part Three: Can de Blasio Turn the Tide on Homelessness?
Jump to Part One: The Challenge of Homeless Policy

by Peter Nasaw and Thomas J. Main. Nasaw, MPA, LMSW, is an expert on homeless policy who has worked in the social services for several years. Main is a professor at the School of Public and International Affairs, Baruch College, City University of New York and author of Homelessness in New York City: Policymaking from Koch to de Blasio.

De Blasio Wrestles with Homelessness -- Part Three: Can de Blasio Turn the Tide?

de Blasio new homelessness plan

Mayor de Blasio (photo: Edwin J. Torres/Mayor's Office)

This is part three of a three-part series: De Blasio and Homelessness: A New Progressive Mayor Wrestles with an Old Social Problem, by Peter Nasaw and Thomas J. Main. [Jump to Part One: The Challenge of Homeless Policy or Part Two: Setbacks and Responses]

Part Three: Can de Blasio Turn the Tide on Homelessness?
In response to the growing shelter census, the de Blasio administration recently released a new plan, “Turning the Tide on Homelessness,” which features an ambitious proposal to build 90 new shelters within a five-year period, while ending the use of cluster sites and commercial hotels. The multipronged approach also touts the mayor’s success in enhancing shelter security and addressing code violations, which is particularly warranted given the state of disrepair found in many cluster site apartments.

A New Tone and New Shelters
Perhaps the most striking thing about the new plan is its tone, which is markedly more realistic than de Blasio’s campaign rhetoric. When he was a candidate, de Blasio’s determination that the city could indeed successfully take on the daunting problem of inequality raised expectations about what could be done to deal with homelessness. Now, his new plan tells us that “[w]e must be clear-eyed: it will take many years to reset the unacceptable status quo we see today...There are no silver bullets here. We will not solve this crisis overnight. It will be a long hard fight.”

The more realistic tone is certainly welcome. But wouldn’t it have been better to start out by lowering expectations, which de Blasio could have afforded to do given the big lead he enjoyed in the general election campaign?

If the city indeed succeeds in opening 90 new shelters, it says it will be able to end the use of commercial hotels and cluster site housing. But the greatest challenge to the construction of new shelters is community opposition. De Blasio’s new plan therefore calls for improved community relations and better outreach to community boards in order to curb resistance to new shelters.

Unfortunately, the mayor’s promises to consult communities thoroughly sound all too much like those of his mentor, David Dinkins, who in 1991 proposed to overcome local opposition to his plan of opening a mere 20 shelters through “Early and Meaningful Community Involvement,” “Fair Distribution of New Facilities Around the City,” and “Undertaking a Comprehensive Approach to Siting.” Dinkins’ plan was to win over hostile neighborhoods by being too impeccably fair to dispute. Communities would have none of it. The highly visible plan merely called attention to itself and gave communities an obvious target. The fact is, the less noticeable such siting efforts are, the easier they are for the city to accomplish.

Another problem for de Blasio’s plan is that where and how to place new shelters is in part governed by the city’s “Fair Share” law, which was incorporated into the City Charter in 1989. The law is outdated and confusing, and over the past 25 years, poor neighborhoods have in fact received more shelters than is equitable. In response to this unfairness, the City Council is now considering a proposal to reform the Fair Share law and push better-off communities to accept more shelters.

Fair enough, it would seem, but a disproportionate number of shelter residents come from those same poor communities. Locating more shelters in better-off neighborhoods would mean that more homeless people would be sheltered far away from their places of origin, a practice that advocacy groups such as Coalition for the Homeless already dislike. How the de Blasio administration will square this circle is not at all clear.

Two courses of action for the city seem desirable. One is to reform the CITYFEPS voucher program. As it stands, CITYFEPS may not meet its goals of rehousing families in appropriate apartments since units are not appropriately inspected. The practice of having CITYFEPS units inspected by potentially self-interested service providers should end. The responsibility of inspecting apartments should be taken over by HPD, which already has a set of standards that is enforceable, and staff trained and equipped to perform this function. If the reintegration of DHS and HRA is successful, perhaps better coordination with HPD and other agencies will improve the administration of CITYFEPS.

The cluster site program should end and the apartments it made use of should be converted into permanent housing for LINC voucher holders. But as IBO notes, the greatest challenge to this initiative is that the landlords will be paid half as much from LINC as they are already being paid to run a cluster site. Landlords are also reluctant to resume business relationships with the city after the fallout from the abrupt termination of the Advantage program in 2011. However, the city should be able to use the threat of withdrawing funding for cluster site housing as leverage in convincing landlords to participate in the LINC program.

The experience of the de Blasio administration also sheds light on two conceptual issues. One, it seems that the issue of perverse incentives needs to be reexamined. The studies that undermined the perverse incentive theory and cleared the way for the reintroduction of rent subsidies are now 18 years old and the issue needs to be revisited. The introduction of LINC was supposed to drive the census down, but it has in fact gone up, which does not imply causality but does suggest that the issue of how policy affects shelter demand deserves careful consideration. DHS needs to improve its forecasting ability to more accurately predict the likely results of changes in rent subsidies, eligibility, and other policies.

Also important is what recent experience with homelessness policy says about the prospects for the progressive coalition in New York City. A striking feature of city homelessness policy is that it was developed mostly under conservative mayors: Koch, Giuliani, and Bloomberg. From the beginning of modern homeless policy in the late 1970s to the end of Bloomberg’s tenure in 2013, the one-term mayoralty of David Dinkins was the only interregnum of progressive rule.

Coming to grips with homelessness proved difficult for Dinkins, who found that he had to rethink some of the progressive conceptions he had brought to the issue. Dinkins’ indecisiveness and his failure to make a dent in a problem he had decried as a candidate seemed to justify Giuliani’s criticism that progressives lacked the managerial skills necessary to govern New York City. De Blasio’s reelection prospects seem pretty good right now, but his lackluster record with an issue that was central to his political vision will not be helpful. To be fair, de Blasio was dealt a bad hand regarding the homeless problem, but he has not always played his cards well. The problem has not been fundamentally wrongheaded policy but lack of managerial and political deftness. Can progressives govern New York City? De Blasio’s so far disappointing record on homelessness does not help make the case they can.

This is part three of a three-part series, De Blasio and Homelessness: A New Progressive Mayor Wrestles with an Old Social Problem, by Peter Nasaw and Thomas J. Main.

Jump to Part One: The Challenge of Homeless Policy
Jump to Part Two: Setbacks and Responses

by Peter Nasaw and Thomas J. Main. Nasaw, MPA, LMSW, is an expert on homeless policy who has worked in the social services for several years. Main is a professor at the School of Public and International Affairs, Baruch College, City University of New York and author of Homelessness in New York City: Policymaking from Koch to de Blasio.

Take a Stand for Workers’ Rights on May Day and Every Day


DCA Commissioner Lorelei Salas, the author

Sitting in front of more than 150 people, Maria Aguilar broke down in tears as she shared how often she experiences discrimination and abuse at the hands of her employers. Maria is a day laborer at “La Parada,” a street corner in Williamsburg where every day she waits and hopes for the chance to be picked up by someone looking for last-minute child care or housekeeping services. Maria is almost always a victim of wage theft and despite working long days and weeks she does not get paid minimum wage, let alone the overtime wages she is owed. After years of toiling under terrible conditions, she joined other day laborers and formed a worker co-op of cleaners with the hopes of regaining some sense of control over who she works for, and on what terms.

She is one of the “lucky” ones. Most workers may never get to set the terms of their employment. Take Pierre, a young father and husband working for a fast food restaurant, who choked up as he told us how he had to wait until Sunday to figure out which two or three days he might be scheduled to work that week, and having to choose between putting food on the table or paying his phone bill. Or Nereyda, a transgender Latina and member of Make the Road New York, who experienced sexual harassment and wage theft at the restaurant where she worked. When she finally obtained a court decision in her favor, her employer went bankrupt and shut down to avoid having to pay her back wages.

New York City stands against these and other exploitative labor practices; we are committed to protecting all New Yorkers regardless of national origin, race, religion/creed, gender, and gender identity.

Mayor de Blasio‘s legislative proposal to address the terrible scheduling practices in the fast food industry by requiring employers to give advance notice to workers of their schedules will make it so that workers like Pierre can plan ahead and know how much money they will bring home. And as our Office of Labor Policy and Standards (OLPS) gets ready to implement the Freelance Isn’t Free Act, gig economy workers will get assistance in recouping money they are owed and navigating the court system. We are building a new generation of workplace protections, and just in time.

A few days ago, the Department of Consumer Affairs’ Office of Labor Policy and Standards (OLPS), along with the city’s Commission on Human Rights and the Mayor’s Office of Immigrant Affairs, held a public hearing on the state of workers’ rights at LaGuardia Community College in Long Island City. We took testimony from nearly 50 workers in the construction, fast food and retail, home health care, restaurant, and taxi industries. I have spent nearly 20 years working in the field of labor compliance at all levels of government, and the stories of rampant wage theft and unsafe workplaces that we heard struck a very familiar chord with me. What I found even more alarming was that the exploitative conditions these workers endure do not discriminate. They have spread across countless industries and span racial and socio-economic divides.

While we wait to see what direction the Trump administration takes in terms of enforcing key workplace protections, we are preparing for the worst. A proposed $2.5 billion budget cut for the United States Department of Labor could result in a gutting of enforcement staff and further deterioration of working conditions. Now more than ever, it will be up to progressive cities and states to step up enforcement efforts and fill the gap left by the federal government.

New York City, led by Mayor de Blasio, is doing just that. We have been enforcing New York’s Paid Sick Leave Law for just over three years, and since January, we have seen a 30 percent increase in the number of complaints filed against employers not following the law. We are encouraged by the fact that people are not shying away from coming to us for help, but this troubling trend coincides with the timing of anti-immigrant policies coming out of D.C.

Today -- Monday, May 1, or May Day -- will be filled with marches and protests, and everyone who cares about workers’ rights, including those at my agency, will be seeking to elevate the issues that plague workers in this country. It has become ever clearer that worker exploitation is an equal opportunity evil that cannot be condemned just once a year. We need to devote more time and resources to filling current labor gaps if we hope to secure a safer and stronger workplace for our children.

Lorelei Salas is the Commissioner of the Department of Consumer Affairs, which houses the Office of Labor Policy and Standards. Workers can learn more about what the office does at or by calling 311. On Twitter at @NYCDCA.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Passing New York’s Next School Discipline Test

education charter school rally albany

A charter school rally at the Capitol (photo: The Governor's Office)

UFT President Michael Mulgrew raises important points about the negative impact of suspensions in his recent op-ed, “Charter Schools Can’t Suspend Their Way to Success.

There is no disputing Mr. Mulgrew’s argument that the excessive use of suspensions and other exclusionary disciplinary practices means that students (and especially students of color) miss out on class time and their education permanently suffers. No school – regardless of whether it’s a public charter school or district public school – should ever be able to “suspend its way to success.”

The good news is that New York can do something about it – right now.

In Albany, state leaders are working on a major overhaul of how New York measures school performance and provides urgency, resources, and support to help schools that are not succeeding for any group of students. These changes are possible under a federal education law that President Obama signed, called the Every Student Succeeds Act (ESSA).

While academic measures like reading and math achievement must – and should – remain the most important aspect of how we measure school performance, there’s also room for a small number of additional measures of school quality and student success that capture other important student outcomes that schools can control and that have a clear link to achievement.

Without a doubt, reducing suspensions meets those criteria.

A recent study by the California Dropout Research Project and The Civil Rights Project at the University of California found that “suspensions themselves directly reduce the graduation rates of suspended students” – resulting in a 6.5 percentage point difference in high school graduation rates.

Our own research at The Education Trust--New York found that across New York State, African-American elementary and middle school students are nearly four times as likely as their white peers to receive at least one out-of-school suspension, and African-American high school students are twice as likely as their white peers to be suspended. The challenge is not limited to New York City, and it’s not unique to charter schools.

We – along with a statewide coalition of civil rights, education, parent, and business organizations committed to advancing equity through ESSA – believe that schools should be held accountable for reducing the overuse of exclusionary discipline measures, including in- and out-of-school suspensions, expulsions, seclusions/restraints, and school-based arrests.

Of course, just including discipline in our accountability system is not sufficient. We also need the resources to support teachers and principals in enacting restorative justice practices and establishing positive school environments. Including discipline in our accountability system can help create the urgency to provide these critical tools so our schools can truly address the problem and improve the learning environment for all students.

Other states are already taking advantage of ESSA to show they are serious about reducing excessive discipline. In Louisiana, for example, the state’s new accountability system would require support and improvement in schools that have high rates of suspensions.

Does New York’s State Education Department agree that efforts to reduce excessive suspensions should have real teeth?

We’ll find out in just a few short weeks, when they present their draft accountability plan to the Board of Regents and the public.

Ian Rosenblum is the executive director of The Education Trust--New York. On Twitter @EdTrustNY.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Charter Schools Can't Suspend Their Way to Success

mulgrew classroom

Michael Mulgrew, the author (photo: UFT)

Children who miss 20 or more days of school in New York City have lost so much instruction time that they are classified as chronically absent, which studies have linked to lower test scores and higher dropout rates.

So it is hard to see the educational purpose behind Success Academy's suspending a special-needs 7-year-old for 45 days, even if some form of alternative instruction was provided. This one recent example is part of a much larger pattern, both for Success Academy and the larger charter school sector it is the leader of.

Sadly, Success Academy is far from the outlier in the charter sector in the use of suspensions as a punitive tool.

A 2016 study by the Center for Civil Rights Remedies at the University of California, Los Angeles, found charters nationwide suspended African-American and special-needs students at a disproportionately higher rate than their white or non-disabled classmates. The report was the first national review of charter school discipline.

In New York City, although the charter school student population was less than 7 percent of the system's total enrollment, charter schools accounted for nearly 42 percent of all suspensions, according to a review by The Atlantic of 2014 state suspension data.

Charter schools accounted for 48 of the top 50 New York City schools with the highest suspension rates for the same year. The Icahn Charter #7 in the Bronx reported giving out 142 suspensions to its 99 students that year, the highest suspension rate in the city. Achievement First Crown Heights Charter reported issuing 200 suspensions to its roughly 940 students that same year.

Teachers know that there is a place for suspension of children who are dangerous to themselves or others, or who constantly make learning impossible for their classmates. The UFT fought to ensure that the system's new discipline policy included the ability for a principal to suspend even the youngest children, though the potential loss of learning time means that suspension should always be a last resort.

But we also know that it takes time, energy, and public scrutiny to move from punitive, after-the-fact discipline codes to pro-active, restorative practices that can change school climate. At the UFT, we have joined with the city Department of Education to create a package of training and techniques to help staff identify and deal with issues proactively, known as the Positive Learning Collaborative.

At schools enrolled for three years in this joint venture, suspensions are down, as are the kinds of incidents that used to trigger them. And perhaps more important, the satisfaction of children, staff, and parents in the schools is up.

Charters need to do similar work, and do it publicly to regain the trust of the public, particularly parents and students.

Michael Mulgrew is president of the United Federation of Teachers. On Twitter @UFT.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

After Major State Budget Investment, Time to Unify in Our Housing Fights

nyc hdc rendering

(NYC HDC rendering)

For more than a year there has been wrangling and discord among developers, housing advocates, organized labor, and our elected leaders over an agreement on spending for affordable housing. A “memorandum of understanding” was drafted, but a budget and legislative session came and went in Albany without a consensus.

Now, we finally have a state budget that gives us more than $2 billion in spending on housing. It will have its critics, but by and large this plan puts in front of us the resources and the political will to address the housing and community revitalization needs of cities large and small throughout New York.

This commitment of state resources is more critical than ever as we face a hostile federal budget that aims to eliminate housing programs that are integral to everyday New Yorkers, as well as those that provide safety nets and services to our most vulnerable citizens.

At The Community Preservation Corporation (CPC), small buildings have been our focus for more than four decades. What we’ve seen across our lending portfolio highlights the critical role they play in the stability of our neighborhoods, but also the challenges these properties face. They are where most low- and moderate-income renters live, and are an essential resource of natural affordability.

The state’s housing plan puts in place more than $60 million to help preserve this irreplaceable, yet often forgotten backbone of our housing stock.

Seventy-one percent of the multifamily buildings in the upstate markets CPC serves have fewer than 50 units. What’s striking is that 67 percent of units in these small buildings are in fair or poor condition. They tend to be older, more distressed, and their owners often lack the means to maintain their physical and financial health.
Why are they so important? The rents in these very same buildings are the most affordable in all markets. They are 16 percent below the average rent for their metro areas and 40 percent below the rent levels of the highest-quality buildings. State resources on this scale will be key in preserving and improving housing that is currently serving millions of New Yorkers, and ensuring that it will continue to serve millions more well into the future.

Supportive housing is one of the most compassionate, effective, and cost-efficient means to addressing homelessness. Section 8 has played a significant role in its funding, but with the program squarely in the crosshairs of the president’s budget, state funding will be key to continuing its production.

This deeply affordable housing provides stability and supportive services specifically tailored to the needs of at-risk populations such as formerly homeless military veterans, youth aging out of foster care, and those with mental illness who need additional support.

A joint report by New York City and State found that tenants of supportive housing spent fewer days in jail, homeless shelters, and state-operated psychiatric facilities. This can save taxpayers millions because these tenants are far less likely to need other publicly-funded programs such as government-subsidized health care and social services.

Governor Cuomo’s “Affordable New York” program, which replaces 421-a, will help jumpstart development of low- and moderate-income rental housing in working-class communities throughout New York City’s boroughs. This is essential in a city like New York where half of renters are rent-burdened – paying 30 percent or more of their income towards rent.

Contrary to the spotlight on luxury buildings in high-market neighborhoods, data shows that more than 64 percent of all residential units financed under the old 421-a program between 2010-2015 were created outside of Manhattan, most in smaller buildings.

Thousands of units of affordable and naturally affordable housing would not have been financially feasible and would not have been built without 421-a. Those properties are anchoring working-class communities, providing revenue to the city, and their construction, operation, and maintenance create jobs.

This plan makes good on the governor’s promise to provide an unprecedented level of state resources to address the housing challenges facing our state. It is time for the housing community to come together and recognize that we’re all on the same team. The federal budget, or lack thereof, is looming large over our efforts to strengthen our communities and serve those most in need. If we continue to fracture and fight amongst ourselves, the losers will be the New Yorkers who don’t have the luxury of waiting for us to get out of our own way.

Rafael E. Cestero is the president and CEO of The Community Preservation Corporation and former commissioner of the New York City Department of Housing Preservation and Development. On Twitter @communityp.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Time to Let New York Dance


(photo: choreographer Blacka Di Danca)

New York City is experiencing a sonic boom. From electronic cumbia in the Bronx to thumping techno in an East Williamsburg warehouse to experimental sounds in a former Greenpoint luncheonette, the energy of the city’s diverse music cultures is at a creative and popular peak. At the grassroots level, a diffuse network of DIY arts spaces cultivates the next generation of musicians. These fiercely independent venues exist to create opportunities for emerging artists and new voices, offering a first show, a supportive crowd, and a sense of community.

But not everyone is feeling the good vibrations: archaic laws and a punitive bureaucratic mindset are stifling small, local venues that are already struggling to cope with skyrocketing rents. Given a severely lacking support structure for the city’s DIY music and art spaces, a single misstep can prove disastrous. In this environment, the selective enforcement of current rules and regulations serves to criminalize nightlife—dampening economic opportunity and making New York less safe.

One particularly draconian example, the Cabaret Law, was passed at the height of the Harlem Renaissance in a bid to curb the rise of jazz clubs in the prohibition era. In the words of the Committee on Local Laws, the aim was to rein in “the ‘wild’ stranger and the foolish native” by prohibiting restaurants and bars from allowing more than three patrons to dance without receiving a separate cabaret license. For more than 60 years, the law specifically banned the principal instruments used in jazz, until a 1986 ruling found that provision unconstitutional. Despite this overtly discriminatory origin, the law has remained in force to this day.

In addition to its redundancy—strict rules already govern noise, alcohol, crowds, and other late-night nuisances—the Cabaret Law continues to have a chilling effect on specific styles of music, encouraging local music and art spaces to book rock bands or folk performers instead of hip-hop artists or salsa musicians that might inspire the crowd to dance. Applying for a license involves a gauntlet of additional regulations and costs, including additional security, surveillance, operational, and recordkeeping requirements. The cost and complexity help explain why just 94 of the city’s 25,000-plus food service establishments currently hold a cabaret license.

This regulatory relic is just one example of the adversarial relationship that characterizes the city’s interactions with independent nightlife and local arts communities. Many DIY spaces never recover after accruing multiple violations and thousands of dollars in fines. Even modest fixes can be out of reach, especially for smaller spaces: changing a certificate of occupancy, applying for a public assembly permit, or undertaking renovations to comply with byzantine building codes all pose significant hurdles. The lost revenue from just a few days spent closed for repairs can mean the difference between making rent and risking eviction.

In a city where one experienced entrepreneur cites costs upward of $1 million to open a 100-capacity venue, it’s no surprise that artist- and youth-run spaces end up mired in a constant struggle to operate legally. The result is that the city’s small, local arts venues—which account for more than 12,000 jobs and $800 million in annual economic output—struggle to make ends meet.

Rising rents are a major contributing factor, but the city government presents obstacles of its own. In order to prepare for the onslaught of city agencies, DIY spaces are not only paying artists and staff, but also attorneys, expeditors, compliance consultants, and contractors to satisfy health, building, fire, water, gas, and electrical regulations. Faced with escalating costs, zoning pressures, and an enforcement-focused system of regulatory agencies, New York City’s status as an incubator of arts and culture is under threat.

The Center for an Urban Future’s Creative New York report found that at least 24 music venues closed between 2011 and 2015, with more DIY spaces, such as Palisades and Shea Stadium, shuttering in the past few months (although the latter is poised to return). A recent report from the Mayor’s Office of Entertainment and Media confirmed these findings, announcing that more than 20 percent of the city’s smaller music venues have closed over the past 15 years.

Sustaining independent music and nightlife means supporting efforts to create safer physical spaces. It is essential that all spaces comply with common sense safety rules, such as clear paths of egress and working fire extinguishers. But the existing financial and regulatory burden creates a two-tiered ecosystem, with fully licensed, for-profit venues operating aboveground while many artist-run or not-for-profit spaces are forced into the shadows. This has the paradoxical effect of pushing vital arts spaces further underground, making artists and patrons less safe, not better protected.  

New York needs a strong base of local arts venues to create opportunities for emerging artists and sustain the next generation of musicians, organizers, and cultural producers. The city should take steps to cultivate its grassroots music and nightlife venues, or risk undermining the foundation of its creative growth. The creative sector now employs roughly 300,000 New Yorkers, or 7 percent of all jobs in the city. And small clubs, bars, and music venues account for thousands of additional jobs, fueled by live performances every night of the week.

A strategy to support these entrepreneurial endeavors could include free or subsidized legal advice and architectural services for artists and venues; a grantmaking or matching-funds program for urgent safety improvements and public assembly permits; a program to provide mock inspections to local music and art venues; and a nightlife liaison inside City Hall—an approach successfully undertaken by some of New York’s cultural rivals, including San Francisco and Berlin.

Perhaps the simplest step in the right direction is to repeal the Cabaret Law. After nine decades of antagonism toward nightlife, the time has come to let New York dance.

Eli Dvorkin is managing editor of the Center for an Urban Future and a founding member of the Silent Barn. On Twitter @nycfuture.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

A Constitutional Right to Healthy Schools?

museum school 25


When voting Nov. 7, 2017 on whether to call a state constitutional convention, New Yorkers should consider enhancing social welfare rights

New York’s Constitution mandates that every 20 years New Yorkers be asked via a statewide ballot referendum whether they want to call a state constitutional convention. The next such referendum is on the ballot on November 7. If passed, the agenda for the constitutional convention that then occurs should include enhancing social welfare rights, including healthy public schools.

The state constitutional convention held in New York in 1938 passed amendments mandating healthy work conditions for government employees, including healthy work hours. These amendments were added at a time when the conditions in public schools were very different.  For example, the one-room schoolhouse remained common, dedicated public bus transportation to schools was just emerging, and forcing children to attend school before dawn was exceptional. If New York’s Constitution guarantees healthy work conditions for government employees, it should do the same for children attending public schools, who have even less choice over the place and hours of their work.

The Proposal
I recommend two additions to New York’s Constitution. Currently, its bill of rights includes the following provision: “Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. No laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, shall be permitted to work more than eight hours in any day or more than five days in any week, except in cases of extraordinary emergency.”

Analogous to this bill of rights for government employees (“labor”), I recommend one for public-school students: “The state shall not compel students to sacrifice fundamental biological needs to attend public school.” This would include forced attendance at school prior to dawn and at times that make it impossible to get appropriate sleep.

I also recommend adding a health provision to the education clause in the main body of the Constitution (addition marked in italics): “The legislature shall provide for the maintenance and support of a system of free and healthy common schools, wherein all the children of this state may be educated.”

education resources Snider ConConNote that in New York’s Constitution the term “common schools” refers to what we nowadays call public schools. Although this clause may appear vague and unenforceable to the casual reader, New York’s top court has interpreted it to mean that the Constitution guarantees every New York student, including disabled, delinquent, neglected, and dependent children, a “sound basic education” through high school.

As applied to school start times, the proposed change to the education clause could be interpreted to entail a due process requirement when a public-school district mandates pre-dawn start times; for example, that a school district couldn’t arbitrarily schedule a poor child to take a public-school bus at 5:55 a.m. (before dawn) to attend a high school starting at 7:17 a.m. (also before dawn during winter months) without providing a reasoned, public explanation for its decision that explicitly considers children’s health and safety.

Manageable court remedies for a school district with persistent unhealthy bus pickup or school start times could include mandating a healthy time or, less onerously, that the district offer the harmed students a voucher based on the district’s current average student cost. The voucher could then be used to allow the student to get a sound healthy education at another school.

It’s arguable that New York’s clause, “No person shall be deprived of life, liberty or property without due process of law” already includes a right to sleep and health more generally. For example, on February 28, 2016, India’s Supreme Court ruled that “sleep is a fundamental human right” based on the clause in its constitution protecting the “right to life.” But given the history and wording of New York’s Constitution, such a court interpretation in the context of public schools is unlikely.

New York also has a clause mandating that its “state board of social welfare shall make inspections… as to matters directly affecting the health, safety, treatment and training of [reformatory institutions’] inmates.” But public school children are clearly exempt from this requirement.

Other social welfare clauses likely to be proposed at a New York State constitutional convention would be a guarantee of affordable basic healthcare coverage for all; affordable, debt-free tuition at public institutions of higher education; and a clean and healthy environment, including water and air. Redefining the definition of “needy” in the “aid, care and support of the needy” clause would also be likely. Consequently, it could be smart politics for the social welfare groups backing such proposals to form an alliance prior to the Nov. 7 referendum.

con con process graphThe Process and Opposition
The constitutional convention process grants the public three votes (see graphic): 1) whether to call a convention, 2) who to elect to a convention, and 3) whether to approve any of the convention’s proposals. The purpose of the mandatory referendum provision is to provide a mechanism to bypass the Legislature when the Legislature would otherwise have veto power over constitutional amendments involving its own power and the special interests to which it is beholden. In other states, the constitutional initiative serves a similar function, albeit in a less deliberative and democratic way.

Since the institution of a constitutional convention is a check on the Legislature, its natural enemies include the Legislature and any powerful special interest group that has a successful track record of influencing the Legislature. Coalition partners of these groups, who fear opposing their most powerful allies, are also its natural enemies, which may entail either taking a neutral position or actively opposing a measure that, absent the imperatives of coalition politics, they would support. Alas, many of these coalition partners are social welfare groups.

A primary argument that state constitutional convention opponents make is that a convention cannot be controlled by the Legislature and is thus a “Pandora’s Box.” But that is its prime virtue because if a Legislature could limit its agenda it would defeat the purpose of calling a state constitutional convention in the first place.

The more relevant question is whether the people can be trusted to vote in their own self-interest. For thousands of years, the enemies of democracy argued that the people were incapable of making reasoned judgments about their own self-interest. They have a point, but in the long run actions premised on the people’s incapacity for democracy—including their incapacity to override a legislature’s veto power over constitutional amendment—have proven far more harmful.

The health of our children should not be subject to the special interest politics that too often dominate American public education and intimidate parents whose children are held hostage. If Big Education views the cost of healthy public schools as a zero-sum game that comes out of its members’ paychecks, then it should be bypassed. In New York, the only available bypass mechanism is the state constitutional convention. If government workers have a right to healthy work conditions, so do children—even more so because they are children and have no say in the matter.

Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.