It would be an understatement to say early childhood advocates were shocked by the state’s recent motion to eliminate preschool and early childhood education from a landmark school funding lawsuit.

The Sept. 15 motion — filed by Assistant Attorney General Ralph Urban — asks Hartford Superior Court Judge Marshall Berger to limit the scope of the funding lawsuit to primary and secondary education starting with kindergarten.

Maggie Adair, executive director of the Early Childhood Alliance, said her organization will advocate for the withdrawal of the motion.

“Early childhood education is part of a world-class education system,” Adair said. “Research indicates that one of the most effective strategies for improving educational outcomes and promoting economic development is high-quality early education.”

Adair and the plaintiffs in the lawsuit find it hard to believe anyone would try to argue a different position, especially when it’s something Gov. Dannel P. Malloy and his administration have sought to expand with their recent “Race to the Top” application and an executive order, which creates an Office of Early Childhood Education and requires the creation of a coordinated system of early care and education by July 1, 2013.

But Malloy didn’t question Attorney General George Jepsen’s decision to go forward with the motion last week when asked about it at an unrelated press conference.

“I think he’s right,” Malloy said referring to motion to eliminate preschool from the lawsuit. “When you examine a constitution you have to look at what the framers of that constitution or the people who last touched it, what circumstances they were dealing with or what they would have imagined.

“That does not mean we shouldn’t be committed to early childhood education,” Malloy said last Thursday as he stood next to Jepsen. “I will note for you that in a budget deficit of $3.5 billion I actually put more money for early childhood education. So the legal position is not necessarily determinative of what we should do as a state when we can do it.”

The underlying lawsuit, which the Connecticut Supreme Court sent back to a lower court more than a year ago, goes far beyond prior decisions involving claims of inequality in education because for the first time the Connecticut Supreme Court held that there is a qualitative standard to be met.

As Mayor of Stamford, Malloy was one of the first to join the lawsuit, but when he became governor he found himself on the opposite side. Before he took office, advocates were hopeful that he would settle the case, which is scheduled to go to trial in 2014. This recent motion makes advocates think a settlement is even more unlikely.

Malloy’s recent response was met with harsh criticism from the plaintiff‘s in the case.

“Malloy’s response indicates that he prefers the status quo to continue — i.e., that state funding of early childhood programs should remain solely a function of state budgeting vicissitudes and uncertainties and not become an education entitlement that might be folded into the ECS formula,” Dianne Kaplan deVries, executive director of the Connecticut Coalition for Justice in Education Funding, said.

“The governor’s lawyerly support of this motion — which would not only deny preschool students any right to a quality education until they enter kindergarten, but also relieve the state of its constitutional duty to fund early childhood programs — is surprising and on face value, also illogical, given his stellar record as a champion of early childhood education,” deVries added.

Adair said she was happy to hear Malloy will remain committed to early childhood education, but she disagreed about the Attorney General’s motion and said it does send the wrong message. She said she will be asking the Alliance’s partners to call on the Attorney General’s office to retract the motion before the status conference in December.

Philip Streifer, president of the Connecticut Coalition for Justice in Education Funding and Superintendent of Schools in Bristol, joined deVries in calling the motion “illogical.”

He said there are few things known in public education definitively, but the one that’s irrefutable is a quality early childhood education and the impact it has on a child’s future.

He said what he knows as an educator is that if a student comes to kindergarten unprepared and they’re not reading at grade level by third grade, then it’s difficult — although not impossible — to catch up. He said having a quality, lengthy early childhood education from birth-to-five is important to the development of a child.

He said that while he understands the legal argument he thinks it will be difficult, if not impossible, for attorneys to find credible evidence that an early childhood education shouldn’t be part of Connecticut’s education system.

“There was not in 1965, nor is there today, a statutory mandate to provide public preschool or preschool services,” attorneys in Jepsen’s office argue in the motion.

“Some 23 separate state statutes refer to preschool, including schemes establishing grant programs to support public and private preschool programs or services, and family resource centers. While these statutory provisions encourage and support the development of preschool programs, whether in private or public facilities, none mandate such programs,” the motion reads.

The attorneys argue in their motion that the historical record of the 1965 Constitutional Convention, the last time the Constitution was changed, leaves “little doubt that preschool or preschool services do not fall within the scope of the Constitutional right.”

“It is readily apparent that the text of the constitutional provision at issue makes no reference to preschool or preschool services,” the motion goes onto read. “In fact, quite to the contrary, the term “schools” is explicitly modified by the terms “free” and “public” — and, most critically, by the terms “elementary” and “secondary.” Obviously, “pre-kindergarten,” “preschool” and “early childhood education” are terms used to describe programs which are decidedly not elementary or secondary education.”

Click here for more information about the underlying lawsuit that is currently part of the complex litigation docket in Hartford Superior Court.