STUDENT ACHIEVEMENT COUNCIL

[Filed September 10, 2019, 2:40 p.m.]

Preproposal statement of inquiry was filed as WSR 18-22-082.

Title of Rule and Other Identifying Information: Chapter 250-40 WAC, State work-study program.

Hearing Location(s): On October 23, 2019, at 2:00 p.m., at the Washington Student Achievement Council (WSAC), 917 Lakeridge Way S.W., Olympia, WA 98502.

Date of Intended Adoption: November 6, 2019.

Submit Written Comments to: Don Bennett, P.O. Box 43430, Olympia, WA 98502, email info@wsac.wa.gov, fax 360-753-7808, by October 22, 2019.

Assistance for Persons with Disabilities: Contact Kristin Ritter, phone 360-153-7810 [360-753-7810], fax 360-753-7808, email kristinR@wsac.wa.gov, by October 16, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency proposes to amend the definition of "eligible employer" to clarify existing limitations on nonprofit organizations and private sector employers of students receiving financial assistance under the state work-study program (chapter 28B.12 RCW, chapter 250-40 WAC). The proposal also amends an existing prohibition of work that is "sectarian related" that will expand student employment placements to more eligible employers and clarifies the type of work that remains prohibited.

*"Eligible employer" is defined to include any eligible institution of postsecondary education, any nonprofit organization, or any private sector employer. The current definition includes only public institutions and nonsectarian nonprofit organizations.

*The types of work prohibited are revised to exclude work that directly involves religious worship, exercise or instruction, as well as continuing the prohibition of any partisan or nonpartisan political activity.

Reasons Supporting Proposal: The categorical exclusion of sectarian nonprofit organizations as employers and prohibiting any work that is sectarian related currently limits the types of participating employers and types of work that student employees may perform while receiving state work-study financial assistance. These limitations reduce the number of potential employers, including the ability for students attending nonprofit higher education institutions that have some religious affiliation from working in any on-campus capacity.

Prior court decisions and interpretation of the United States Constitution and Washington Constitution supported an expansive approach to preclude any use of public funds that may support religious exercise or establishment. More recent decisions, including Trinity Lutheran (citation below), prohibit categorical exclusions on the use of public funds. The rule amendments provide a narrow limitation on use of state work-study funds based on the state's interest to ensure that public funds do not support religious worship, exercise or instruction, or the support of any religious establishment.

A civil action commenced in the U.S. District Court for the Western District of Washington in August 2018 to challenge the existing state work-study rules. The proposed rule amendments address the issues presented and should result in an agreed resolution of the litigation.

Statutory Authority for Adoption: RCW 28B.12.060.

Statute Being Implemented: Chapter 28B.12 RCW.

Rule is necessary because of federal court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017).

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: WSAC will begin working with participating higher education institutions following adoption of these rule amendments during the 2019-20 academic year to implement changes in campus practices, policies, and allocation of available funding beginning with the 2020-21 academic year.

Name of Proponent: WSAC, governmental.

Name of Agency Personnel Responsible for Drafting: Don Bennett, WSAC, 360-753-7831; Implementation and Enforcement: Becky Thompson, WSAC, 360-753-7840.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. Not applicable to rules adopted by this agency.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute.

Explanation of exemptions: RCW 28B.12.060 provides specific content of rules.

AMENDATORY SECTION(Amending WSR 02-20-083, filed 9/30/02, effective 10/31/02)

WAC 250-40-030Definitions.

(1) "Financial need" shall be the difference between the budgetary cost to the student attending an institution of postsecondary education and the total family contribution which the institutional financial aid administrator determines can reasonably be expected to be available to the student for meeting such costs.

(2) "Budgetary cost" of attending an institution shall consist of those costs required to support the individual and other costs in accordance with federal costs of attendance calculations during the period of enrollment. Budgets will reflect the applicable year's cost levels for tuition, room and board, transportation, books, supplies, personal expenses, and any other cost factors deemed necessary for consideration, consistent with WAC 250-40-040 (2)(a).

(3) "Total family contribution and resources" shall be consistent with amounts recognized by federal need analysis criteria, unless otherwise modified in accordance with these rules and program guidelines.

(4) "Washington resident" shall be defined as an individual who satisfies the requirements of RCW 28B.15.011 - 28B.15.013 except resident students defined in RCW 28B.15.012 (2)(e) and board-adopted rules and regulations pertaining to the determination of residency.

(5) "Eligible institution of postsecondary education" shall mean any postsecondary educational institution in the state of Washington accredited by the Northwest Association of Schools and Colleges; or a branch campus of a member institution accredited by Middle States Association of Colleges and Schools, New England Association of Schools and Colleges, North Central Association of Colleges and Schools, Southern Association of Colleges and Schools, Northwest Association of Schools and Colleges, or Western Association of Schools and Colleges that is eligible for federal student financial aid assistance and has operated as a nonprofit college or university delivering on-site classroom instruction for a minimum of twenty consecutive years in the state of Washington; or any public technical colleges in the state of Washington.

(6) "Eligible employer" shall be defined as any eligible ((public)) institution of postsecondary education; any ((other)) nonprofit organization ((which is nonsectarian)); or any ((profit-making nonsectarian))private sector employer producing a good or providing a service for sale or resale to others, which can and agrees to provide employment of a demonstrable benefit related to the student's postsecondary educational pursuits and which conducts business within the state of Washington; or any other employer approved by the ((higher education coordinating board))office. In approving an employer as eligible, the ((board))office or an institution acting as its agent will consider at the minimum:

(a) The relationship of the jobs to the students' educational objectives;

(b) The potential for displacement of regular employees;

(d) The ((employer))employer's compliance with ((appropriate))applicable federal and state civil rights laws.

(7) "Dependent student" shall mean any post-high school student attending an eligible institution of postsecondary education who does not qualify as an independent student in accordance with subsection (8) of this section.

(8) "Independent student" shall mean any student who qualifies as an independent student for federal student aid.

(9) "Half-time student" means any student enrolled in at least one-half the credit hour or clock hour load defined by the institution as constituting expected full-time progress toward the particular degree or certificate.

(10) "Off-campus community service placements" shall include direct service, planning, or applied research that is designed to improve the quality of life for residents of the community served, particularly low-income residents, in such fields as health care, child care, education, literacy training, welfare, social services, public safety, crime prevention and control, transportation, recreation, housing and neighborhood improvement, rural development, and community improvement. Placements are identified by an institution through formal or informal consultation with local nonprofit, governmental, and community-based organizations.

AMENDATORY SECTION(Amending WSR 06-17-047, filed 8/8/06, effective 9/8/06)

WAC 250-40-050Restrictions on student placement and compensation.

(1) Displacement of employees. Employment of state work-study students may not result in displacement of employed workers or impair existing contracts for services.

(a) State work-study students employed by public institutions of postsecondary education may not fill positions currently or formerly occupied by classified employees.

(b) In cases of governmental employment, state work-study students may fill positions which have been previously occupied but were vacated as a result of implementing previously adopted reduction in force policies in response to employment limitations imposed by federal, state or local governments.

(c) In all other cases, state work-study students may not fill positions which have been occupied by regular employees during the current or prior calendar or fiscal year.

(2) Rate of compensation. All work-study positions shall receive compensation equal to the entry level salary of comparable nonwork-study positions.

Students employed by public postsecondary educational institutions who are filling positions which are comparable to Washington personnel resources board classified positions must be paid entry level Washington personnel resources board wages for the position unless the overall scope and responsibilities of the position indicate a higher level.

Determination of comparability must be made in accordance with state work-study program operational guidelines.

Documentation must be on file at the institution for each position filled by a state work-study student which is deemed by the institution as not comparable to a higher education personnel board position.

(3) Maximum total state work-study compensation. Earnings beyond the student's state work-study eligibility must be reported to the financial aid officer, and resulting adjustments made in the financial aid package in accordance with federal methodology. In the event that a student earns more money from state work-study employment than the institution anticipated when it awarded student financial aid, the excess is to be treated in accordance with the method specified in the state work-study operational guidelines.

(4) State share of student compensation. With the exception of board-approved off campus community service placements, the state share of compensation paid students shall not exceed 80 percent of the student's gross compensation. In the following cases the state share may be established at 80 percent:

(a) When employed by state supported institutions of postsecondary education at which they are enrolled;

(b) When employed as tutors by the state's common school districts;

(c) When employed in tutorial or other support staff positions by nonprofit adult literacy service providers in the state of Washington who meet guideline criteria for participation; and

(d) When employed in an off-campus community service placement. The state share of compensation paid students employed by all other employers shall not exceed 65 percent of the student's gross compensation.

(5) Employer share of student compensation. The employer shall pay a minimum of 20 percent or 35 percent of the student's gross compensation as specified in subsection (4) of this section, plus the costs of any employee benefits including all payments due as an employer's contribution under the state workman's compensation laws, federal Social Security laws, and other applicable laws. The federal work-study program cannot be used to provide employer share of student compensation except when used for placement of students in tutorial or other support staff positions with adult literacy service providers in the state of Washington who meet guideline criteria for participation.

(6) Academic credit for state work-study employment. Students may receive academic credit for experience gained through state work-study employment.

(7) Maximum hours reimbursed. Employment of a student in excess of an average of 19 hours per week, or in the case of on-campus graduate assistants an average of 20 hours per week, over the period of enrollment for which the student has received an award or a maximum of 40 hours per week during vacation periods will not be eligible for reimbursement from state funds.

A student may not be concurrently employed in the same position by the state work-study program and the federal work-study program and exceed the 19 hours per week average.

(8) Types of work prohibited. Work performed by a student under the state work-study program shall not ((be sectarian related))directly involve religious worship, exercise or instruction and shall not involve any partisan or nonpartisan political activity.

(9) Relationship to formula staffing percentage. Placement of state work-study students in on-campus positions at public postsecondary educational institutions may not result in a level of employment in any budget program in excess of a formula staffing percentage specifically mandated by the legislature.