SD Supreme Court to hear argument in GEAR UP appeal


A Charles Mix County court's 2018 decision to grant summary judgment to the Mid-Central Educational Cooperative will be contested before the South Dakota Supreme Court on Oct. 2.

Appellants and former GEAR UP students Alyssa Black Bear and Kelsey Walking Eagle-Espinosa, who filed their complaint against MCEC and related parties in May 2016, appealed the court's decision. They argued in a brief submitted Dec. 17, 2018, that the circuit court mistakenly ruled that their claims were preempted by federal law.

MCEC, 20 of its directors, the American Indian Institute for Innovation (AIII), five individuals and the estates of Scott and Nicole Westerhuis are named as defendants and appellees in the case.

MCEC had entered into contracts with AIII to operate programs and spend Gaining Early Awareness and Readiness for Undergraduate Program (GEAR UP) grant money awarded to the South Dakota Department of Education by the U.S. Department of Education with the intent of helping low-income students earn high school diplomas.

In September 2015, the day after Scott Westerhuis, MCEC's business manager, learned that the state Department of Education might terminate its partnership with MCEC, Westerhuis allegedly killed himself, his wife, Nicole Westerhuis, and their children in Platte. Investigation into the Westerhuises' deaths uncovered information that led to Black Bear and Walking Eagle-Espinosa suing for civil theft, breach of contract, negligent supervision and failure of MCEC and AIII's directors to control their agents and employees.


From January through May of 2017, MCEC, its directors, AIII and former MCEC director Dan Guericke filed motions for summary judgment in the case. The court denied those motions on most issues but granted summary judgment on the defendants' assertion that the students' claims are preempted by federal law in July 2018.

The appeal, written by attorney John Hinrichs, alleges that the case law the circuit court used to grant summary judgment would only be applicable if Black Bear and Walking Eagle-Espinosa had been seeking a right at the federal level, under the Higher Education Act (HEA), rather than making claims at the state level.

Hinrichs wrote that the appellees mischaracterize Black Bear and Walking Eagle-Espinosa's claims as an attempt to enforce GEAR UP and override the U.S. Department of Education's authority to administer and regulate the program and that none of the claims made actually call for the enforcement of HEA or other federal statutes.

"Were Appellees’ contentions that Students seek to enforce compliance with federal regulations correct, Students would agree that their claims are preempted. But that is not the case," Hinrichs wrote, using "students" to refer to the appellants. "Students' claims are not brought to enforce compliance with GEAR UP grants, but to vindicate Students’ rights under state contract and tort law."

Related Topics: U.S. SUPREME COURT
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