                                          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

             (Opinion 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




*
  On November 6, 2018, the panel issued a not precedential
opinion in this matter authored by the Honorable Thomas I.
Vanaskie. Judge Vanaskie retired from the Court on January
1, 2019. After Judge Vanaskie's retirement, amici curiae filed
a motion to issue the opinion as a precedential opinion which
was considered by the remaining members of the merits
panel. Today, the Court has issued the opinion as a
precedential per curiam opinion. See 3rd Cir. I.O.P. 12.1 (d).




                              2
Shannon L.C. Ammon, Esq.
Jeffrey A. Sturgeon, Esq.
Morgan Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103

Maura McInerney
Education Law Center
1315 Walnut Street, Suite 400
Philadelphia, PA 19107
      Counsel for Amicus Appellees


                       ______________

                OPINION OF THE COURT
                     ______________

PER CURIAM

        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 with his parents, ever since his
parents lost their home in November 2014. Accordingly, we
will affirm.

                               I.




                               3
       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.C. § 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 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.




                               4
       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.

(App. 365.) 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.’s sister, S.S, in one of its schools. The
parties do not dispute that S.S.’s living conditions are identical
to those of G.S.

       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




                                5
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.”




                              6
                                 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 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. 140.) 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:




                                  7
      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 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.

(App. 141) (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.) G.S. and his
parents 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.




                              8
                               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 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; . . .




                               9
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/160240ehcyguidan
ce072716.pdf.

        There is no dispute that G.S. satisfied § 11434a(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, 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.1 And
       1
        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. (App. 292–93.) At oral




                               10
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.

                                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

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.




                                11
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.




                             12
