                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 17-2886
                                  _____________

                     G.S., a minor, by his parents, J.S. and E.S.

                                          v.

                    ROSE TREE MEDIA SCHOOL DISTRICT
                         (E.D. Pa. No. 2-16-cv-04782)

                    ROSE TREE MEDIA SCHOOL DISTRICT

                                          v.

            E.S. and J.S., Parents and Natural Guardians of G.S., a Minor
                             (E.D. Pa. No. 2-16-cv-04849)

                         Rose Tree Media School District,
                                             Appellant
                                 _____________
                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                 (D.C. Civil Nos. 2-16-cv-04782 & 2-16-cv-04849)
                   District Judge: Honorable Eduardo C. Robreno
                                  ______________

                                Argued June 4, 2018
                                 ______________

           Before: AMBRO, JORDAN, and VANASKIE, Circuit Judges

                             (Filed November 6, 2018)

Gabrielle C. Goham, Esq.
Katherine H. Meehan, Esq. [Argued]
Raffaele Puppio
19 West Third Street
Media, PA 19063
      Counsel for Appellant

Michael D. Raffaele, Esq. [Argued]
Kershenbaum and Raffaele
1230 County Line Road
Bryn Mawr, PA 19010
      Counsel for Appellees

Shannon L. Ammon, Esq.
Jeffrey A. Sturgeon, Esq.
Morgan Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103
       Counsel for Amicus Appellees




                                     ______________

                                        OPINION*
                                     ______________
VANASKIE, Circuit Judge.

       Appellant Rose Tree Media School District (“Rose Tree”) appeals the District

Court’s grant of summary judgment concluding that Rose Tree was obligated to enroll

Appellee G.S. under Subtitle VII-B of the McKinney-Vento Homeless Assistance Act

(“McKinney-Vento” or the “Act”), 42 U.S.C. § 11434a(2) and § 11432(g)(3)(A)(i). We

agree with the District Court that G.S. satisfies the Act’s definition of youth

homelessness because he has been living in his maternal grandmother’s home, along




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
with his parents, ever since his parents lost their home in November 2014. Accordingly,

we will affirm.

                                             I.

       In 2010, G.S., along with his parents, his two sisters, and his paternal

grandparents, moved into a rental home within Rose Tree. At the time, G.S. and his

sister, S.S., attended schools within Rose Tree. In November 2014, G.S.’s parents were

unable to make payments and lost the home. As a result, G.S. moved in with Ba.S., his

maternal grandmother. The grandmother’s single-family, 1500-square foot row house

was located outside of Rose Tree.

       With the addition of G.S., a total of ten people—five adults and five children—

resided in the grandmother’s home. Initially, G.S. slept in the living room with his

parents and two sisters. At times, G.S. moved his cot to the kitchen or basement to

obtain some privacy. The parties agree that, to date, G.S.’s living conditions remain

unchanged.

       Rose Tree immediately learned of the change in G.S.’s living conditions. At that

time, Rose Tree deemed G.S. and S.S. homeless and thus continued to enroll them in a

manner consistent with its obligations under McKinney-Vento, 42 U.S. §

11432(g)(3)(A)(i).

       In January 2015—less than two months after G.S. moved in with his maternal

grandmother—he was involved in a disciplinary incident at school. Rose Tree

suspended G.S. for three days, extended the suspension to ten days, and threatened him

with expulsion. G.S.’s parents challenged Rose Tree’s actions. The parties resolved the

                                             3
matter pursuant to a written Settlement Agreement. Rose Tree, for its part, agreed to

pay for G.S. to attend a school outside of its jurisdiction for the 2015–16 school year. In

exchange, G.S.’s parents agreed to waive all claims through August 31, 2016. The

Settlement Agreement also included a provision purporting to waive G.S.’s right to

claim homelessness after the 2015–16 academic year.

       Pursuant to the Agreement, G.S. attended a school outside Rose Tree for the

2015–16 school year. Following the conclusion of that academic year, in July 2016,

G.S.’s parents notified Rose Tree of the family’s intent to re-enroll G.S. in one of its

schools for the 2016–17 academic year. Rose Tree refused to enroll G.S., reasoning that

his parents had waived his right to claim homelessness and thereby enroll under

McKinney-Vento.

       G.S.’s parents initiated state grievance proceedings. After conducting an inquiry,

the Pennsylvania Department of Education issued a determination letter, stating:

              the outcome of our investigation is that [G.S.] . . . ha[s] the
              right under the federal McKinney-Vento Homelessness Act to
              continue being educated in the Rose Tree Media School
              District since it is [his] school district of origin and [he] is
              temporarily residing in a doubled up living situation that is not
              fixed, regular nor adequate.

(Appellee’s Br. 6) G.S.’s parents again attempted to enroll G.S. in Rose Tree, but the

School District again refused.

       Throughout the pendency of this matter, Rose Tree continued to enroll G.S.’

sister, S.S, in one of its schools. The parties do not dispute that S.S.’s living conditions

are identical to that of G.S.


                                              4
       G.S. and his parents filed suit in federal court, Case No. 16-4782, against Rose

Tree, seeking enrollment. Rose Tree filed a separate lawsuit in federal court, Case No.

16-4849, against G.S.’s parents, seeking a declaration that it was not obligated to enroll

G.S. The District Court consolidated the two cases in February 2017. Both parties

moved for summary judgment. The District Court resolved both motions in a single

order, finding in favor of G.S. Rose Tree timely appealed. On appeal, the Education

Law Center, the Homeless Children’s Education Fund, the National Law Center of

Homelessness and Poverty, and the People’s Emergency Center appear as amici in

support of G.S.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s

grant of summary judgment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d

Cir. 2014).

                                            III.

       Rose Tree argues that the grant of summary judgment in favor of Appellees was

erroneous because: (1) G.S.’s parents waived his McKinney-Vento rights for the 2016–

17 academic year in the Settlement Agreement; (2) G.S. is no longer “homeless” within

the meaning of the Act; and (3) enrollment in Rose Tree is not in G.S.’s “best interest.”

                                            A.

       As a threshold matter, we must determine whether G.S.’s parents waived his

McKinney-Vento rights in the Settlement Agreement. The parties agree that

                                             5
Pennsylvania law governs our interpretation of the Agreement. Under Pennsylvania

law, “[t]he fundamental rule in contract interpretation is to ascertain the intent of the

contracting parties.” Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462,

468 (Pa. 2006) (internal citation omitted). “In cases of a written contract, the intent of

the parties is the writing itself . . . When the terms of a contract are clear and

unambiguous, the intent of the parties is to be ascertained from the document itself.” Id.

(internal citations omitted).

          In relevant part, the Settlement Agreement includes a provision purporting to

waive G.S.’s McKinney-Vento rights for the 2016–17 academic year. This provision

states:

                Parents agree that they will make no claim of homeless status
                after the 2015-16 school year and that the District will have
                no further obligations to Student after the 2015-16 school
                year.

(App. 107). The District Court concluded that the waiver was unenforceable for lack of

consideration. We agree.

          Under Pennsylvania law, consideration is an essential element of a valid contract.

See Taylor v. Stanley Co. of Am., 158 A. 157, 158 (Pa. 1932); see also Johnston the

Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 516 (Pa. Super. Ct. 1995). In

addition to the waiver provision excerpted above, the Settlement Agreement includes a

provision titled “Adequate Consideration.” This provision states:

                Adequate Consideration. The Parents specifically
                acknowledge and agree that the District’s agreement to make
                the above payments is intended to and does provide the
                Parents with sufficient consideration for a settlement and

                                               6
              compromise of any and all outstanding education and
              discrimination claims that they may now have or have had,
              whether known or unknown, from the beginning of time
              through August 31, 2016. The Parents also expressly
              acknowledge and confirm that: (1) the only consideration for
              their signing of this Agreement consists of the terms and
              provisions stated herein; and (2) no other promise or
              agreement of any kind, save those set forth in this Agreement,
              has been made by any person or entity whatsoever to cause
              them to sign the document.

(Appellee’s Br. 3-4) (emphasis in original).

       Rose Tree argues, in conclusory fashion, that the family received “adequate” and

“substantial consideration for all of the promises made . . . .” (Appellant’s Br. 6.)

Appellees counter that the “Adequate Consideration” provision of the Agreement

expressly limits consideration to claims arising before August 31, 2016, and thus any

waiver of claims concerning the 2016–17 academic year lacks consideration.

(Appellees’ Br. 11–12, 15–16.) As the District Court concluded, the clear and

unambiguous language of this provision states that consideration was only provided for

claims through August 31, 2016, which pre-dates claims arising out of the 2016–17

academic year. Accordingly, we agree that any purported waiver of claims arising after

August 31, 2016, lacks consideration and is unenforceable.

                                             B.

       Next, Rose Tree contends it need not enroll G.S. because he is no longer

“homeless” within the meaning of the Act. Subtitle VII-B of the Act, “Education for

Homeless Children and Youths” (“EHCY”), addresses the educational barriers faced by

homeless children. EHCY preserves the right of equal access to a “free, appropriate


                                             7
public education” independent of a child’s housing status. 42 U.S.C. § 11431(1).

Specifically, under this subtitle, local education agencies are required to continue a

homeless child’s education in his or her “school of origin” for the “duration” of his or

her homelessness if doing so is in the child’s “best interest.” Id. § 11432(g)(3)(A)(i).

Notably, there is no statutory limit on the duration of homelessness.

       Whether a child is eligible under EHCY is determined by the Act’s definition of

youth homelessness, 42 U.S.C. § 11434a(2). In relevant part, this definition provides:

              The term “homeless children and youths”—

                     (A) means individuals who lack a fixed, regular, and
                     adequate nighttime residence (within the meaning of
                     section 11302(a)(1) of this title); and

                     (B) includes—

                            (i) children and youths who are sharing the
                            housing of other persons due to loss of
                            housing, economic hardship, or a similar
                            reason; . . .

Id. § 11434a(2). Children who satisfy § 11434a(2)(B)(i) are often described as living

“doubled up.” See U.S. Dep’t of Educ., Education for Homeless Children and Youths

Program Non-Regulatory Guidance, 5 (2016),

https://www2.ed.gov/policy/elsec/leg/essa/160240ehcyguidance072716.pdf.

       There is no dispute that G.S. satisfied § 11434(a)(2) when he first moved in with

his maternal grandmother. Rather, the question is whether G.S. continues to satisfy this

definition almost four years later. Rose Tree argues that G.S. no longer lacks a fixed,




                                             8
regular, and adequate nighttime residence due to the fact that his doubled-up living

arrangement has persisted for several years. We are not convinced.

       First, Rose Tree’s interpretation is inconsistent with the plain meaning of the

statute. There is no dispute that G.S. continues to satisfy § 11434a(2)(B)(i), which is

listed as a specific example of youth homelessness. Second, the Act does not impose a

limit on the duration of homelessness. This undermines Rose Tree’s argument that a

doubled-up arrangement can transform into a fixed, adequate, and regular nighttime

residence if it persists long enough. Third, Rose Tree fails to cite any authority other

than general provisions of the Act and the dictionary for its interpretation. This is

unsurprising—to date, no court has adopted Rose Tree’s interpretation. Fourth, several

circumstances particular to this case persuade us that G.S. is eligible for coverage. Rose

Tree initially treated G.S. as homeless, and the parties agree his living arrangements

have not changed. It is also compelling that Rose Tree has continued to enroll G.S.’s

similarly situated sister, S.S., throughout the duration of this matter.2 And finally, the

Pennsylvania Department of Education determined that G.S. remains homeless.

Although we are not bound by the Agency’s determination, we think it is well-reasoned

and, therefore, instructive. To remove G.S. from the protections of the Act under these

circumstances strikes us as nothing short of arbitrary. Accordingly, we agree that G.S.

continues to qualify as homeless for purposes of enrollment in a Rose Tree school.


       2
         Although S.S. is enrolled, the record is unclear as to whether Rose Tree still
considers her to be homeless within the meaning of the McKinney-Vento Act. At oral
argument, the School District took the position that while S.S. was homeless at the start
of the 2016–17 academic year, she may not be homeless currently.
                                              9
                                             C.

        Finally, assuming G.S. qualifies as homeless, Rose Tree argues it need not enroll

G.S. because enrollment is not in his best interest. It raises this argument for the first

time on appeal and thus we need not consider it. See Caisson Corp. v. Ingersoll-Rand

Co., 622 F.2d 672, 680 (3d Cir. 1980). Nonetheless, we take a moment to reject this

argument on its merits.

        A school district is required to enroll a homeless student so long as doing so

accords with the child’s “best interest.” 42 U.S.C. § 11432(g)(3)(A). It is presumed that

the best interest of the student is to remain in his or her school of origin unless doing so

is contrary to the request of the parent or youth. Id. § 11432(g)(3)(B). School of origin

“means [either] the school that a child or youth attended when permanently housed or

the school in which the child or youth was last enrolled, including a preschool.” Id. §

11432(g)(3)(I)(i).

        Here, all of the statutory considerations align to suggest enrollment in Rose Tree

is in G.S.’s best interest. Rose Tree hosts the school where G.S. was enrolled when he

became homeless; the school where G.S. was last enrolled; the school where his sister

attends; and the school where he and his parents seek enrollment. Under these

circumstances, we conclude that continued enrollment in Rose Tree is in G.S.’s best

interest.

                                             IV.

        For these reasons, we will affirm the order of the District Court dated July 31,

2017.
