The U.S. Education Department issued proposed regulations Thursday (see text below) to give states “the clarity they need” to implement the new K-12 education law, the Every Student Succeeds Act.

What’s clear is that the proposed regulations instantly sparked a new battle with some critics who charged the Obama administration with continuing to insert itself in issues where it doesn’t belong.

That includes in the highly controversial issue of how states should deal with students who refuse to take standardized “accountability” tests. With a testing “opt out” movement that has been growing in recent years, the department spells out a series of punitive options states should take in an attempt to get schools to ensure 95 percent student participation rate on federally required state-selected standardized tests.

The proposed regulations were negotiated by a committee created in the ESSA, which was passed in December by Congress to replace the much maligned No Child Left Behind law. NCLB was supposed to be rewritten in 2007, but Congress only got around to it after the administration was accused by critics from both ends of the political spectrum of micromanaging local education policy and after educators and parents began to revolt against standardized test-based “accountability” systems promoted by the Education Department.

The ESSA sent a good deal of education policymaking power back to the states. It did not, however, eliminate the federal role, and that is what the implementation battle is about — how much power the U.S. Education Department still has to tell school districts and states what to do.

The proposed regulations, among other things, would require states to ensure that school districts are implementing “accountability” systems based on multiple measures. The states have a lot of discretion on how those systems should be constructed but not total, with the federal government requiring that states “assign a comprehensive, summative rating for each school to provide a clear picture of its overall standing,” as well as report on a school’s performance on each indicator. The proposed regulations also require that states intervene in consistently underperforming schools — though it doesn’t clearly define what those are — and says that “robust action” must be taken against schools that don’t test 95 percent of students.

Sen. Lamar Alexander (R-Tenn.),  chairman of the U.S. Senate education committee who was a prime force in getting ESSA passed and who had called Obama’s Education Department a “national school board,” said in a statement: “I am disappointed that the draft regulation seems to include provisions that the Congress considered — and expressly rejected.” He didn’t, though, specify which ones.

Randi Weingarten, president of the American Federation of Teachers, the nation’s second largest union, did. She said in a statement that she was disappointed with key parts of the regulations:

“Rather than listen to the outcry by parents and educators over hypertesting, the department offers specific punitive consequences for when fewer than 95 percent of students participate in tests. This doesn’t solve the issue of the misuse of testing. It simply inflames the problem by suggesting punitive consequences for those who are so frustrated by the misuse and high-stakes nature of standardized testing that they want to opt their kids out.

“The department seeks to impose a more aggressive timeline than the new law provides for districts to implement these new accountability systems. Without enough time to put them in place, states will revert back to what they have — a test-driven accountability system. This will maintain the old test-and-punish accountability systems and an overly prescriptive federal role in schools. That is not the reset ESSA promised.

Other critics didn’t think the department went far enough in directing states what to do, including about how to deal with groups of students in schools who are chronically “underperforming.”  The Education Trust, a nonprofit advocacy group, said it supports some of the regulations but not others.

“[B]y allowing states to limit the definition of consistent underperformance for a group to being in the lowest performance level on an indicator, or being the farthest away from statewide average performance, it undermines the idea — and the congressional requirement — that any group that is struggling in any school needs help and assured action, not just the very lowest performing groups or groups in a limited number of schools.”

ESSA carries over the No Child Left Behind mandate of annual standardized testing from grades 3 to 8 and once in high school,  a requirement that upset critics who believe standardized tests are not good measures of student progress. The “opt out movement,” a revolt against testing has been growing for several years, with many parents refusing to allow their children to take tests that they believe are being used in an improper manner to evaluate students and teachers, and some educators refusing to administer exams they believe are poorly designed.

Under NCLB and now under ESSA, at least 95 percent of eligible students are required to take the state-chosen standardized test used to hold states and school districts “accountable.” Last year, some states did drop below 95 percent, and in recent months the Education Department has been sending letters to states with “suggestions” of how to handle schools that can’t drum up 95 percent support. It also said federal funds could be withheld from states that did not deal effectively with opt outs.

Opt out supporters had been hoping new ESSA regulations would leave it entirely to the states to deal with opt outs, but the the newly proposed regulations set out some parameters. A department summary of the regulations says this:

The proposed regulations do not prescribe how those rates must be factored into accountability systems, but they do require states to take robust action for schools that do not meet the 95% participation requirement. States may choose among options or propose their own equally rigorous strategy for addressing the low participation rate. In addition, schools missing participation rates would need to develop a plan, approved by the district, to  improve participation rates in the future.

Those options, as related in the proposed regulations, are:

[The] state would be required to take one of the following actions for a school that misses the 95 percent participation requirement for all students or one or more student subgroups:
(1) assign a lower summative rating to the school …
(2) assign the lowest performance level on the State’s Academic Achievement indicator …
(3) identify the school for targeted support and improvement, or
(4) another equally rigorous state-determined action, as described in its state plan, that will result in a similar outcome for the school in the system of annual meaningful differentiation under proposed §200.18 and will lead to improvements in the school’s assessment participation rate so that it meets the 95 percent participation requirement.

Bob Schaeffer, the public education director for the National Center for Fair and Open Testing, or FairTest, a nonprofit that advocates against the misuse and abuse of standardized testing, said in an email:

“The draft regulations propose to implement some of the state and district flexibility around assessments and accountability envisioned by the authors of the Every Student Succeeds Act. But Secretary of Education King continues to promote the kind of federal overreach that led to widespread rejection of  No Child Left Behind by using overly prescriptive language such as, “For each accountability indicator, there must be three distinct levels of performance assigned to schools that are ‘clear and understandable to the public.'”

The proposed regulations are open for public comment through Aug. 1, 2016.  Here’s a department chart on differences between the new regulations and NCLB:

Here are the proposed regulations in full: