New Hampshire’s effort to overturn the Claremont school funding rulings, explained

This month, in appealing that decision to the Supreme Court, the Attorney General’s Office claimed that the Claremont decisions, the legal bedrock on which the state currently is required to fund schools, is flawed. 

Claremont I, decided by the state Supreme Court in 1993, and Claremont II, decided in 1997, transformed New Hampshire’s school funding landscape by finding the state had a constitutional duty to provide an adequate education and that the taxes to do so must be uniform and fair. Last year, the Supreme Court ruled in Contoocook Valley School District v. State of New Hampshire that the state’s aid to school districts is unconstitutionally low; the plaintiffs in Rand are making the same argument to protect taxpayers. 

Now that they are under threat, here is what Claremont I and II actually said, and how the state is arguing they are wrong. 

Argument 1: There is no duty to provide an adequate education.

The ruling in Claremont I, in which the Supreme Court first established the state’s constitutional requirement to provide an adequate education, was grounded in one article of the state constitution, and one word within that article: “cherish.”

Part II, Article 83 is a lengthy, obtuse section titled “Encouragement of Literature, Trade, Etc.” that states that “it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools.”

The court’s interpretation of that word in 1993 to impose a state obligation has been at the heart of every school funding dispute since. But this month, the Attorney General’s Office is arguing that that interpretation of the constitution is wrong and “finds no basis in the text.” Accordingly, the state argues, there is no legal requirement for the state to adequately fund New Hampshire schools. 

What Claremont says: To interpret Article 83, the 1993 state Supreme Court went to Thomas Sheridan’s “A General Dictionary of the English Language,” published in 1780, three years before the constitutional provision passed. That dictionary defined cherish as “to support, to shelter, to nurse up,” and duty as “that to which a man is by any natural or legal obligation bound.”

To align those definitions, the Court in Claremont I cited an earlier Massachusetts Supreme Judicial Court Case, McDuffy v. Secretary of the Executive Office of Education, which held that the meaning “encompasses the duty to provide an education to the people of the (state),” and that it is reasonable to read cherish “as a duty to ensure that the public schools achieve their object and educate the people.”

What the state says: The state argues this interpretation was flawed from the beginning. The duties “to support” and “to shelter” within the Sheridan definition of “cherish” impose a nonspecific, governmental obligation to ensure public schools exist, the state argues, not a direct mandate to pay for them. 

“This case exists because this Court’s modern school funding jurisprudence has distorted Part II, Article 83 of the State Constitution beyond recognition, finding rights and mandates in it that do not exist, and fundamentally altering how the State and its political subdivisions may legally interact,” the state argued.

What the plaintiffs say: In an interview Friday, Natalie LaFlamme, an attorney for the Rand plaintiffs, argued the Claremont decisions included thorough historical analysis supporting the interpretation of a constitutional duty on the state to provide an adequate education, and noted that the Supreme Court has upheld that finding as recently as 2025. “It wasn’t like the court decided it in this one-off opinion,” she said. “Again and again, the Supreme Court has reaffirmed that principle.”

Argument 2: If there were a duty, it would be shared between the state and towns.

The Attorney General’s Office’s primary ask of the state Supreme Court is to strike down the Claremont precedents entirely. 

But if the court upholds the constitutionality of the state’s adequacy requirement — as it did last year in its ConVal decision — the state argues the Claremont rulings should be reinterpreted as imposing a shared duty between cities and towns 

This is a position echoed in the Legislature: In March, Gov. Kelly Ayotte signed House Bill 1815, which changed statutory law to make the requirement to provide an adequate education a “shared responsibility.”

What Claremont says: The Claremont decisions were clear that the state’s obligations to public schools are not shared by local contributions, even if the funding is split in reality. 

“‘That local control and fiscal support has been placed in greater or lesser measure through our history on local governments does not dilute the validity’ of the conclusion that the duty to support the public schools lies with the State,” the court wrote in Claremont I. 

Claremont II, which addressed taxation disparities, emphasized that point, stating “the people assigned the duty to support the schools to the State and not to the towns.” 

What the state says: The Attorney General’s Office argues that because New Hampshire schools were historically supported at the local level, any obligation to fund them should be seen as a joint requirement. 

“Towns are component parts of the state, and aggregately taken are the state,” the brief states. 

The state points to Part 1, Article 6 in New Hampshire’s Bill of Rights, which states that “bodies corporate” shall “at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both,” to make the argument that school funding was always considered a local domain.

They also note that the duty to provide an education in Article 83 falls on “legislators and magistrates.” Therefore, the brief argues, that duty is “assigned to those lawmakers and public officers who exercise government authority in the name of the people, not to ‘the State’” alone. 

What the plaintiffs say: LaFlamme rejected that argument, noting the clarity with which the court in the Claremont decisions put the duty on the state. And she argued the passage of HB 1815 was an attempt by lawmakers to override the constitution with statute, which she said was not legal. “It’s a state duty, and we’ve all understood it to be so for the last 40 years,” she said. 

Argument 3: Either way, the courts have no business interfering.

When the U.S. Supreme Court ruled in 2019’s Rucho v. Common Cause that federal courts are not allowed to rule on claims of partisan gerrymandering during redistricting efforts, it did so by declaring political gerrymanders a “non-justiciable political question.”

In its brief to the New Hampshire Supreme Court, the Attorney General’s Office is making a similar claim with respect to school funding: The way New Hampshire funds its schools is a non-justiciable political question that should be left to the Legislature, not the courts.   

What Claremont says: In both Claremont I and Claremont II, the Supreme Court was clear that its ruling was not meant to encroach upon the role of the Legislature and governor in setting education funding policy. “We were not appointed to establish educational policy, nor to determine the proper way to finance its implementation,” the court ruled in Claremont II. 

Rather, the court’s role is to interpret the constitution and decide whether the state was violating it, the decisions stated.

What the state says: The state argues the courts should have no role in how the state defines and funds an adequate education. Doing so, the Attorney General’s Office wrote in its brief, would violate the separation of powers in Part I, Article 37, allow courts to improperly trample into legislative work, and lead to “a never-ending cycle of judicial declarations” over school funding whenever lawmakers made changes the courts didn’t like. That, the state argues, would lead to “a protracted game of call-and-response.” 

What the plaintiffs say: LaFlamme opposed the argument that by finding the school funding model unconstitutional, the court was removing the autonomy of the Legislature. Rather, she argued, it was acting as a referee. “It’s a separation of powers problem in itself (to make the argument) because the court is an equal branch of government and its job is to review laws to make sure they’re constitutional and people’s rights are protected,” she said. 

Argument 4: Local taxes are not state taxes — they don’t need to be equal.

In Claremont II, the court ruled that by not paying enough to its public schools, the state created disparities between richer and poorer towns, causing differing tax burdens. And those different local tax rates, the court ruled, violated the Part II, Article 5 constitutional requirement that taxes be “proportional and reasonable.” 

But the state argues that this interpretation of the ruling is wrong because local taxes are not state taxes in the first place, and thus can’t be unconstitutional. 

What Claremont says: Claremont II ruled that because it is the state’s duty to provide education, when towns and cities are forced to raise their own taxes to pay for adequate schools, those locally raised taxes should be considered state taxes. 

“Although the taxes levied by local school districts are local in the sense that they are levied upon property within the district, the taxes are in fact State taxes that have been authorized by the legislature to fulfill the requirements of the New Hampshire Constitution,” Claremont II held.

Thus, if those taxes are unequal, the system is unconstitutional, the court held. 

What the state says: The state argues that while the statewide education property tax (SWEPT), which is collected by towns but set by the Department of Revenue Administration, is a uniform state tax, any additional tax collected by cities and towns to pay for their schools is local only. 

“Claremont II does not stand for the proposition that a local education property tax, voluntarily imposed by a municipal entity and therefore authorized for a local purpose, can be converted into a state tax through the manner in which a municipality or school district ultimately chooses to spend the revenue it raises,” the state wrote in its brief. 

That means that as long as a town’s local property tax is administered proportionately and fairly within that town’s borders, it is constitutional, regardless of how it compares with the neighboring town, the state argues. 

What the plaintiffs say: LaFlamme argues the Claremont decisions’ logic is clear: If the state pushes the responsibility of providing an adequate education onto towns, then any disproportionate taxes that result should be regarded as state taxes. “If it’s doing a state’s purpose, they are state taxes. End of story,” she said, summarizing Claremont II. 

Argument 5: The taxpayer plaintiffs have no standing to sue.

The Attorney General’s Office argues that individuals do not have standing to sue the state over its education funding policy simply by virtue of being taxpayers. It’s one of the state’s core arguments for getting the Supreme Court to overturn the superior court’s ruling. 

What Claremont says: The court in Claremont I declared the right to an adequate public education is a public right and held that “any citizen has standing to enforce this right.” 

What the state says: The state argues that that declaration conflicts with newer precedents in Duncan v. State and Carrigan v. NH DHHS, in which the court required a plaintiff suing a state to demonstrate direct personal injury in order to have standing. 

What the plaintiffs say: To LaFlamme, the state’s argument contradicts consistent Supreme Court precedent. “Taxpayers have had standing in past school funding cases in New Hampshire,” Meanwhile, the Rand case is in fact a lawsuit against unfair taxes, but to demonstrate that the taxes are unfair, plaintiffs must necessarily show that the school funding is inadequate, LaFlamme argues.

Next steps

Now that the state has filed its appeal, the plaintiffs in Rand have until Oct. 6 to file a response, LaFlamme says. The state will then have another month to file a reply brief, and plaintiffs might be granted the opportunity to reply to that brief. 

That means the case will likely be “fully briefed” by November, raising the possibility for oral arguments at the Supreme Court in December, January, or February.