Donnell Harris and his family sought shelter last winter amid a spike in the number of homeless families.
Donnell Harris and his family sought shelter last winter amid a spike in the number of homeless families.

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At the center of the debate over the surge in the number of homeless families this winter has been a seemingly simple question: What is a private room? The Homeless Services Reform Act, which governs the city’s homeless policy, requires the city to shelter homeless families in need in apartment-style shelter when temperatures with windchill drop below freezing, or when they rise above 95 degrees. If apartment-style shelter is not available, the city must use “private rooms,” the law states.

But the definition of a private room has been a point of contention. In the absence of other available spaces—-in an effort to discourage families with other options from seeking out motel rooms that might be perceived as more attractive—-the city has been sheltering families in recreation centers. At first, families simply slept openly on basketball courts and auditorium floors, without any privacy. Then partitions arrived that allowed some semblance of separation between families, even if noise and light continued to be a problem.

The question was whether those partitioned spaces constituted private rooms, and so far, two judges have weighed in. Coming before John P. Dean of the Office of Administrative Hearings, the Department of Human Services pointed to a definition of “room” in the Merriam-Webster Dictionary: “a partitioned part of the inside of a building.” Dean didn’t buy it; he noted in his February ruling against DHS that the definition provided was the third listed in the dictionary, with the first being “a part of the inside of a building that is divided from other areas by walls and a door and that has its own floor and ceiling.”

A second, bigger case came before D.C. Superior Court Judge Robert S. Tignor earlier this month. Tignor again found that the partitioned areas were not in compliance with the HSRA. In issuing a temporary restraining order against the use of these spaces for the four plaintiff families, he made sure to specify that the families be moved to private rooms with “four non-portable walls, a ceiling, and a floor that meet at the edges.”

Now DHS has weighed in with its own definition of “private room.”

Friday’s D.C. Register—-the official weekly bulletin of new laws, rules, and regulations—-included a notice of emergency rulemaking from DHS. “The HSRA uses the term, ‘private room,'” it states. “However, the term is not defined in the statute. The absence of a definition for the term, ‘private room,’ has caused confusion and uncertainty of late; thereby, hindering DHS’s ability to provide shelter to families.”

There follows a definition:

Private room – a part of the inside of a building that is separated by walls or partitions for use by an individual or family. 

By DHS’ definition, then, the partitioned spaces at the rec centers are perfectly acceptable under the HSRA.

The question is whether the judiciary will see it the same way. Following Tignor’s temporary restraining order, the case will go before another Superior Court judge this Friday, who could issue a preliminary injunction against the use of rec centers, which would remain in effect until the full case is argued sometime later this year or next year. (With the official start of spring just two days away, the issue ought to become moot before long, although sub-freezing conditions are still forecast into next week.)

What’s not immediately clear is the legal weight that DHS’ definition carries, particularly after Tignor explicitly found the partitioned spaces to be in violation of the HSRA and wrote that it was “likely, but not certain, that Plaintiffs will prevail on the merits of this case” going forward. If the next judge upholds Tignor’s ruling, that would presumably outweigh any DHS definition, but it’s unclear whether the judge would be required to consider DHS’ definition a part of the HSRA in deciding on whether the rec centers comply with the law.

Allison Holt, one of the attorneys with Hogan Lovells who has represented the homeless families, declined to comment. DHS spokeswoman Dora Taylor did not return a call for comment.

Photo by Darrow Montgomery