New Hampshire

Admission #9 (June 21, 1788). Era: Original 13 (no federal grant). Draft: Pass 1, 2026-04-30.

New Hampshire’s school-funding story is, in one sense, the simplest in the country: there is no school trust to speak of, because there were no federal lands to grant when the schoolhouse template was written. New Hampshire was the ninth state to ratify the United States Constitution, doing so on June 21, 1788, and that ratification — not an admission act — brought the new federal government into being.¹ The Land Ordinance of 1785, which reserved section sixteen of every surveyed township “for the maintenance of public schools within the said township,” and the Northwest Ordinance of 1787, which committed the new republic to schools and the means of education as a condition of admitting new states, were both written to govern the federal public domain.² New Hampshire’s lands were never federal public lands. There was, accordingly, no section-sixteen reservation, no enabling-act trust, no irreducible fund, and no Board of Land Commissioners. What New Hampshire has instead is older than the federal template, and arguably more consequential to it: the 1784 Constitution, drafted four years before ratification, which placed a duty on the legislature itself — not on a separate corpus of land — to maintain the conditions for self-government through public education.

But the New Hampshire story is also, in a different sense, one of the longest in the country. The duty was on the books in 1784. It was not judicially enforced until 1993. The 209-year latency between the adoption of Part II, Article 83 and the New Hampshire Supreme Court’s first holding that Article 83 was a justiciable mandate is itself among the project’s most striking findings — a constitutional commitment that lay textually present and doctrinally dormant across more than two centuries of state history before the Claremont decisions made it operative.

The textual provision is foundational rhetorical material. Part II, Article 83 of the New Hampshire Constitution, drafted by John Adams and adapted from his own 1780 Massachusetts Constitution, provides:

Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; 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, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people … .³

The structural moves in that paragraph are the same ones that would, the following year, animate the Land Ordinance of 1785 and, three years later, the Northwest Ordinance of 1787. The civic premise is identical: knowledge generally diffused through a community is essential to the preservation of a free government. The mechanism is different — Article 83 lays a duty on legislators and magistrates rather than reserving a section of the township grid — but the underlying logic is one and the same. Adams’s 1780 Massachusetts Chapter V, Section II, which Article 83 closely tracks, was on the desk of every educated Founder when the federal land ordinances were drafted. To read Article 83 is to read the civic-republican idiom that the federal section-sixteen reservation would translate into landed form for the territories. The Original 13 layer of the project’s argument rests on this textual lineage: the school-trust idea did not begin with the public domain; it began with the duty owed by self-governing peoples to their own continuance.⁴

For two centuries, however, that duty in New Hampshire was treated as hortatory. No nineteenth-century New Hampshire case construed Article 83 as imposing an enforceable funding obligation on the legislature. The article was amended twice — in 1877, to prohibit tax money being granted to schools or institutions of any religious sect or denomination, and in 1903, to add the anti-monopoly and corporate-regulation language now appended to the education clause — but neither amendment converted the underlying duty into a justiciable mandate.⁵ The state’s K-12 education was, in practical terms, a local affair, funded primarily through local property taxes and administered by local school districts under general state oversight. Article 83 was civic poetry that had quietly become civic furniture.

The transformation came in 1993. In Claremont School District v. Governor — what is now called Claremont I — five property-poor school districts sued the State, arguing that Article 83 imposed on the State itself, not on local communities, a constitutional duty to provide a constitutionally adequate public education. The New Hampshire Supreme Court agreed. Article 83, the court held, was not merely hortatory: it imposed an enforceable state duty to provide every educable child a constitutionally adequate public education and to guarantee adequate funding.⁶ Claremont I was a threshold ruling — it established that Article 83 was justiciable at all — but it was also the doctrinal pivot on which the next thirty years of New Hampshire school-funding litigation would turn.

Claremont II, decided in 1997, took the next step. The court held that the property tax used to fund the State’s adequate-education duty was a state tax, not a local one, and that as administered with sharply disparate local rates it violated Part II, Article 5’s requirement of proportional and reasonable taxation. The trial record showed that direct legislative appropriations averaged about eight percent of public elementary and secondary education spending in New Hampshire, with the rest coming from highly unequal local property tax bases.⁷ The court’s holding was that the State could not delegate to localities a constitutional obligation it owed itself, and could not do so through a tax structure that produced grossly unequal effective rates depending on the wealth of the town. Claremont II is the doctrinal foundation of New Hampshire’s modern adequacy-aid regime and of the Statewide Education Property Tax (SWEPT) that emerged in response.

Both Claremont decisions are adequacy rulings, not school-trust rulings. This distinction matters for the project’s framework: New Hampshire has no permanent school-fund corpus to police, no Board of Land Commissioners to hold to fiduciary standards, no irreducible fund whose principal a court could order restored. What the Claremont line polices instead is the State’s funding obligation as such — an obligation that Article 83 creates by imposing a positive duty rather than by establishing a corpus. The remedy is not corpus restoration but constitutionally adequate funding through the General Fund, supplemented by SWEPT. The mechanism is different from the trust-state mechanism; the constitutional weight is, if anything, heavier, because there is no asset to fall back on if the legislature fails to appropriate.

The Claremont line did not end with Claremont II. The 1998 Opinion of the Justices (School Financing) rejected a proposed school-finance plan that would have used local property taxes to fill gaps in state adequacy funding, sharpening Claremont II’s holding that the State may not shift any portion of its constitutional responsibility for adequate education to local communities through gap-filling taxes.⁸ The 1999 statewide property-tax phase-in, enacted in Laws 1999, chapter 17 to respond to Claremont II, was itself invalidated in what is sometimes called Claremont III because the phase-in mechanism imposed different effective state tax rates in different municipalities for the same education-funding purpose.⁹ In 2002, the court added accountability — defining and measuring whether students were actually receiving an adequate education — as an essential component of the State’s Article 83 duty, completing what is now frequently described as the four-part Claremont mandate: define adequacy, determine its cost, fund it through constitutional taxes, and ensure delivery through accountability.¹⁰ In 2006, Londonderry held that the State still had not defined a constitutionally adequate education with sufficient specificity to discharge its Claremont II duty, blocking the costing and funding steps until that prerequisite was met.¹¹ The doctrinal corpus is thirty years deep, and every layer of it rests on the single sentence of Article 83.

The modern phase of New Hampshire school-funding litigation centers on whether the State’s actual appropriation under the post-Claremont statutory regime meets the constitutional threshold. RSA 198:40-a, enacted in 2008 as part of the costing framework for the opportunity for an adequate education, has been repeatedly amended and repeatedly challenged.¹² The principal vehicle has been the Contoocook Valley litigation, brought in 2019 by a coalition of school districts arguing that the statutory base adequacy aid amount was constitutionally insufficient. ConVal I, in 2021, held that the sufficiency of base adequacy aid could not be resolved on summary judgment because identifying the components and costs of an adequate education presented mixed legal and factual questions requiring trial.¹³ After remand and trial, the Rockingham County Superior Court (Judge David Ruoff) found that the $4,100 statutory base aid was facially unconstitutional and identified $7,356.01 per pupil as a conservative minimum threshold for what an adequate education would cost. ConVal II, decided July 1, 2025, affirmed the trial court’s declaration of facial unconstitutionality and the threshold analysis, but reversed the immediate-payment directive on separation-of-powers grounds, leaving remediation to the political branches in the first instance.¹⁴

A parallel modern case, Rand v. State, decided June 10, 2025, addressed the SWEPT mechanism directly. The court held that municipal retention of excess SWEPT revenue did not violate the proportional-and-uniform taxation clause because the legislature’s direction that municipalities keep the funds was an exercise of the spending power. But the court separately held that negative local education tax rates in certain unincorporated places — situations in which a town’s effective state education tax was below zero — violated Part II, Article 5.¹⁵ Rand and ConVal II together represent the state of New Hampshire school-funding doctrine as of mid-2025.

The most consequential recent development arrived on February 24, 2026. In a notice of appeal in Rand, the State of New Hampshire asked the New Hampshire Supreme Court to overrule Claremont I and its entire progeny — to restore what the State characterized as the original meaning of Part II, Article 83 and to hold that Article 83 does not impose a qualitative education standard or any financial standard.¹⁶ This is not an attorney general opinion; it is a litigation position advanced by the Department of Justice in an active appeal. If accepted, it would do to New Hampshire’s state-derived education substrate roughly what overruling Lassen would do to public-land states’ school trusts: it would not eliminate the constitutional text, but it would convert that text from a justiciable duty back into the hortatory provision it had been for two centuries before 1993. The case is presently pending; the merits will determine whether Claremont survives or whether Article 83 returns to dormancy.

In current administrative terms, New Hampshire’s K-12 education is administered by the New Hampshire Department of Education and the State Board of Education, both creatures of statute under RSA Title XV. There is no school-trust board because there is no school trust. The state’s share of K-12 funding is delivered primarily through adequacy aid (the post-Claremont formula) and SWEPT, supplemented by categorical and stabilization programs; the state’s share of total K-12 funding is comparatively low among U.S. states, which has been the durable underlying complaint of every adequacy-line case since Claremont I. The New Hampshire Department of Natural and Cultural Resources, through its Division of Forests and Lands, manages substantial state forest acreage including the Connecticut Lakes Headwaters and other state-owned forest blocks, but these are general state public lands; their revenues flow to the state general fund and to the agency’s own budget, not to schools as a trust beneficiary.¹⁷ There is no permanent school-fund distribution analogous to public-land states.

The 209-year latency between Article 83’s adoption and Claremont I is, in the project’s vocabulary, a particular form of drift — duty present in the text, dormant in the doctrine — followed by a thirty-year doctrinal awakening that is itself now under direct legislative-and-executive challenge. The Original 13 layer of the project’s argument turns on the recognition that Article 83 articulated, in 1784, the same civic-project logic that the federal Land Ordinance of 1785 and the Northwest Ordinance of 1787 would translate into the section-sixteen reservation. Adams’s pen drafted the floor on which both buildings stand. New Hampshire kept the floor; the federal template added landed walls. Both architectures depend, in the end, on the same underlying premise — that knowledge and learning, generally diffused through a community, are essential to the preservation of a free government — and both are presently being tested in court to see whether that premise still binds the legislators and magistrates who inherited it.

Footnotes