Supreme Court of New
CLAREMONT SCHOOL DISTRICT and another,
GOVERNOR and another.
Dec. 30, 1993
"Property poor" school districts and school children and taxpayers from each of
those districts petitioned for declaratory judgment, alleging that the system by
which the state financed education violated the State Constitution. The Merrimack
Superior Court, Manias, J., dismissed, and plaintiffs appealed. The Supreme Court,
Brock, C.J., held that encouragement of literature clause of State Constitution
imposes duty on state to provide constitutionally adequate education to every
educable child in public schools in state and to guarantee adequate funding.
Reversed and remanded.
 Schools k19(1)
 Schools k148(1)
Encouragement of literature clause of State Constitution imposes duty on state to
provide constitutionally adequate education to every educable child in public
schools in state and to guarantee adequate funding; terms "shall be the duty . . .
to cherish" are not merely statement of aspiration but, rather, language commands
that state provide education to all its citizens and that it support all public
schools. Const. Pt. 2, Art. 83.
 Schools k159
Free public education is, at least, important substantive right, as education has
been compulsory in state since 1647, and State Constitution expressly recognizes
education as cornerstone of democratic system. Const. Pt. 2, Art. 83.
 Schools k115
 Schools k148(1)
Right to adequate education mandated by State Constitution is not based on exclusive
needs of particular individual, but rather, is right held by public to enforce
state's duty and any citizen has standing to enforce that right. Const. Pt. 2, Art.
 Schools k19(1)
 Schools k148(1)
State's constitutional duty to provide constitutionally adequate education and to
guarantee adequate funding extends beyond mere reading, writing and arithmetic, but
also includes broad educational opportunities needed in present society to prepare
citizens for their role as participants and as potential competitors in marketplace
of ideas. Const. Pt. 2, Art. 83.
**1376 *183 Shaheen, Cappiello, Stein and Gordon, (Andru H. Volinsky and Arpiar G.
Saunders, Jr. on the brief, and Mr. Saunders *184 orally), Sulloway and Hollis,
( John Burwell Garvey on the brief), and Edward Damon,
Concord, on the brief, for
Jeffrey R. Howard, Atty. Gen. (Leslie J. Ludtke, Sr. Asst. Atty. Gen., on the brief
and orally), for State.
New Hampshire Legal Assistance, Concord (John E. Tobin, Jr. and Abigail Turner on
the brief, and Mr. Tobin orally), for Marie Ayer, Charles and Jeanne Watson, and
John Bowler, as amici curiae.
McLane, Graf, Raulerson & Middleton P.A., Manchester (Jack B. Middleton and Wilbur
A. Glahn, III on the brief), for Ralph Degnan Hough, President of the New Hampshire
James F. Allmendinger, Concord, Staff Atty., NEA-New Hampshire, by brief for
NEA-New Hampshire, as amicus curiae.
Theodore E. Comstock, Concord, General Counsel, New Hampshire School Boards Ass'n,
by brief for New Hampshire School Boards Ass'n, as amicus curiae.
Douglas & Douglas, Concord (Robert J. Rabuck on the brief), for Granite State
Taxpayers' Ass'n and Granite State Legal Foundation, as amici curiae.
John S. Lawton, by brief, pro se, as amicus curiae.
BROCK, Chief Justice.
 The Superior Court (Manias, J.) dismissed the plaintiffs' petition for
injunctive relief and declaratory judgment for failure to state a claim upon which
relief could be granted. The plaintiffs appeal the court's conclusion that the New
Hampshire Constitution imposes no duty on the State to support the public schools.
We hold that part II, article 83 imposes a duty on the State to provide a
constitutionally adequate education to every educable child in the public schools in
New Hampshire and to guarantee adequate funding. Accordingly, we reverse and
remand for further proceedings consistent with this opinion.
**1377 The plaintiffs are five "property poor" school districts and five school
children and five taxpayers, one from each of the school districts. They filed a
petition for declaratory judgment alleging, in six counts, that the system by which
the State finances education violates the New Hampshire Constitution: in counts (1)
and (2) that the State fails to spread educational opportunities equitably among its
students and adequately fund education, both in violation of part II, article 83;
(3) that the foundation aid statutes, RSA 198:27 through *185 33 (1989),
unconstitutionally restrain State aid to public education by capping State
assistance at eight percent; (4) and (5) that both the State school finance system
and the foundation aid statutes deny plaintiffs equal protection; and (6) that the
heavy reliance on property taxes to finance New Hampshire public schools results in
an unreasonable, disproportionate,and burdensome tax in violation of part II,
article 5 of the State Constitution.
Part II, article 83, adopted in 1784 as part of this State's Constitution,
"[Art.] 93. [Encouragement of Literature ...] 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, manufacturers, 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."
The provision was amended in 1877 to prohibit money raised by taxation from being
used by religious schools and again in 1903 to add language concerning control of
corporations and monopolies.
The trial court granted the defendants' motion to dismiss each of the six counts.
Its order states in part:
"New Hampshire's Encouragement of Literature Clause contains no language regarding
equity, uniformity, or even adequacy of education. Thus, the New Hampshire
Constitution imposes no qualitative standard of education which must be met.
Likewise, the New Hampshire Constitution imposes no quantifiable financial duty
regarding education; there is no mention of funding or even of 'providing' or
'maintaining' education. The only 'duty' set forth is the amorphous duty 'to
cherish ... public schools' and 'to encourage private and public institutions.'
*186N.H. Const., pt. 2, art. 83. The language of pt. 2, art. 83 is hortatory,
In view of the foregoing, the Court finds that the N.H. Const., pt. 2, art. 83
imposes no duty as set forth in count one to equitably spread educational
opportunities and advantages or as set forth in count two to equitably and
adequately fund education. Absent such a duty, counts one and two of the
plaintiffs' petition fail to state a claim upon which relief can be granted, and
therefore, both counts must be dismissed."
Because we conclude that the trial court's determination that the State had no
constitutional duty to support public education so permeated its decision to dismiss
counts one through five, we will, at this time, address only the question of whether
part II, article 83 imposes such a duty. With respect to count six, because
petitioners have not had an opportunity to develop a record in support of their
claim, we remand that count to the trial court for its further consideration. Our
narrow task, therefore, is to determine whether the trial court committed legal
error when it concluded that no duty exists.
"In interpreting an article in our constitution, we will give the words the same
meaning that they must have had to the electorate on the date the vote was cast."
Grinnell v. State, 121 N.H. 823, 826, 435 A.2d 523, 525 (1981) (quotation omitted).
In doing so, we must "place [ourselves] as nearly as possible **1378 in the
situation of theparties at the time the instrument was made, that [we] may gather
their intention from the language used, viewed in the light of the surrounding
circumstances." Warburton v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992)
Numerous state courts have in recent years decided cases challenging, on
constitutional grounds, systems of financing public education. Most of those cases
are of limited value to this court because the constitutional provisions at issue
contain language dissimilar to ours and were adopted under circumstances different
from those existing in New Hampshire in the 1780s. Massachusetts, however, presents
an exception. Given that New Hampshire shares its early history with
Massachusetts, that we modeled much of our constitution on one adopted by
Massachusetts four years earlier, and that the Massachusetts Constitution contains a
nearly identical provision regarding education, we give weight to the interpretation
given that provision by the Supreme Judicial Court in McDuffy v. Secretary of the
Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993). See Warburton
v. Thomas, 136 N.H. at 391, 616 A.2d at 500.
*187 An obvious starting point in interpreting part II, article 83 is to determine
what the particular words used meant in 1784: "Encouragement: Incitement to any
action or practice, incentive; favour, countenance, support," T. Sheridan, A
General Dictionary of the English Language 1780 (Scolbar Press 1967); "Literature:
Learning; skill in letters," id.; "Diffused: Spread abroad, widespread; dispersed
over a large area; covering a wide range of subjects," Oxford English Dictionary
(2d ed. 1989); "Generally: so as to include every particular, or every individual,"
id.; "Duty: That to which a man is by any natural or legal obligation bound,"
Sheridan supra; "Cherish: To support, to shelter, to nurse up," Sheridan supra.
See also McDuffy, 415 Mass. at 562 n. 17, 615 N.E.2d at 525 n. 17.
The Encouragement of Literature clause, incorporating the sense of these
definitions, thus declares that knowledge and learning spread through a community
are "essential to the preservation of a free government," and that "spreading the
opportunities and advantages of education" is a means to the end of preserving a
free, democratic state. The duty of ensuring that the people are educated is
placed upon "the legislators and magistrates, in all future periods of this
government," and that duty encompasses supporting all public schools:
"The breadth of the meaning of these terms ('duty ... to cherish'), together with
the articulated ends for which this duty to cherish is established, strongly
support ... that the 'duty ... to cherish ... the public schools' encompasses the
duty to provide an education to the people of the [state].... [I]t is reasonable
therefore to understand the duty to 'cherish' public schools as a duty to ensure
that the public schools achieve their object and educate the people."
McDuffy, 415 Mass. at 564, 615 N.E.2d at 526.
We do not construe the terms "shall be the duty ... to cherish" in our constitution
as merely a statement of aspiration. The language commands, in no uncertain terms,
that the State provide an education to all its citizens and that it support all
public schools. Decisions of this court are consistent with this conclusion. See
In re Davis, 114 N.H. 242, 243, 318 A.2d 151, 152 (1974) (State Constitution
"imposes upon government the duty of providing for the education of its citizens");
State v. Jackson, 71 N.H. 552, 553, 53 A. 1021, 1022 (1902) ("the injunction 'to
cherish the interest of literature' " intended as "more than a mere sentimental
interest"); *188Farnum's Petition, 51 N.H. 376, 378-79 (1871) (constitution
"enjoins the duty" to educate in "comprehensive terms ... as one of paramount public
importance"); cf. Fogg v. Board of Education, 76 N.H. 296, 299, 82 A. 173, 175
(1912) (where student claimed right to state-provided transportation, court noted
that providing for education of children, through support and maintenance of public
schools, has always been governmental duty resting on the State). To suggest that
the language is not mandatory because other states' constitutions, many drafted over
100 years after ours, contain more concrete, **1379 tangible standards of quality of
education and quantity of support is an analysis we cannot endorse.
An examination of the "surrounding circumstances" at the time the constitution was
adopted also supports our conclusion that the framers and the general populace
understood the language contained in part II, article 83 to impose a duty on the
State to educate its citizens and support the public schools. See Attorney-General
v. Morin, 93 N.H. 40, 43, 35 A.2d 513, 514 (1943). The Puritans who settled here
were deeply committed to education. They emigrated "chiefly to enjoy and propagate
their religion; but next to this ... to educate their children." N. Bouton, The
History of Education in New Hampshire: A Discourse Delivered Before the New
Hampshire Historical Society 3 (1833) (transcript available at the New Hampshire
State Library). The New England Puritans are credited with "contribut[ing] most that
was valuable for our future educational development, and establish[ing] in practice
principles which have finally been generally adopted by our different States." E.
Cubberley, Public Education in the United States 15 (1919).
Between 1641 and 1679, New Hampshire and Massachusetts were united as a single
province. See Manual for the General Court 117 (1891). The first New England law
on education was enacted in 1642, which ordered that all children should be taught
to read. See McDuffy, 415 Mass. at 570 n. 27, 615 N.E.2d at 529 n. 27. In 1647,
an act was passed by which public schools were established in New Hampshire.
McDuffy, 415 Mass. at 571 n. 28, 615 N.E.2d at 529-30 n. 28. The 1647 law expressed
the principles that private property was subject to public taxation for support of
public schools, that schooling was to be provided for all children, and that the
State would control education. "It can safely be asserted that these two
Massachusetts laws of 1642 and 1647 represent not only new educational ideas in the
English-speaking world, but that they also represent the very foundation stones upon
which our American public school systems have been constructed." Cubberley, supra
at 18. In *189 1669, the towns of Portsmouth, Dover, and Exeter each contributed
money to "aid in erecting a new edifice for Harvard College." Bouton, supra at 10.
Such was deemed by those towns as "needful for the perpetuating of knowledge both
civil and religious, among us, and our posterity after us." Bouton, supra at 10
When New Hampshire became a separate province in 1680, it reenacted the education
laws of Massachusetts then in existence. In 1693, the New Hampshire Legislature
enacted a law requiring the towns' selectmen to raise money by "an equal rate and
assessment" on the inhabitants for the construction and maintenance of the schools
"and allowing a Sallary to a School Master." G. Bush, History of Education in New
Hampshire 10-11 (1898); see Laws of New Hampshire, Vol. 1 Province Period 560-61
(1679-1702). A penalty was provided for failure to comply with the statute. Bush
supra. Similar laws were enacted in 1714, 1719, and 1721. Bush supra.
The law of 1719 required every town having fifty householders or more to provide a
schoolmaster to teach children to read and write, and in every town of 100
householders, a grammar school to be kept. Laws of New Hampshire, Vol. 2 Province
Period 336-37 (1702-1745). A penalty was to be assessed for failing to comply with
the law, to be paid "towards the Support of Such School or Schools within this
Province where there may be most need." Id. The law of 1721 stated:
"Whereas the selectmen of Sundry Towns within this Province often Neglect to
provide Grammar Schools for their Respective Towns whereby their youths Loose much
of their Time, to the great Hindrance of their learning, For Remedy whereof Be it
Enacted ... That Not only Each Town but each parish within this Province Consisting
of one Hundred Families shall be Constantly Provided with a Grammar School.... And
[if] any such Town or Parish ... is Destitute of a Grammar School for the space of
one month, the Selectmen ... shall forfeit ... the Sum of Twenty pounds for Every
Such Neglect to be paid out of their own Estates, & to be **1380 applyed towards
the Defraying the Charges of the Province[.]"
Id. at 358.
Although these laws required the towns to fund public education, Governor Wentworth
made clear in an address to the Council Chamber of the House of Assembly, on April
13, 1771, that the duty to educate remained with the State: "Religion--Learning,
and Obedience to the Laws, are so obviously the Duty & Delight of Wise Legislators,
that their mention, justifies my Reliance on your whole *190 Influence being applied
to inculcate, spread & Support their Effect, in ev'ry Station of Life." Governor
Wentworth, Executive Papers & Correspondence (1771). It is also apparent from
Governor Wentworth's subsequent message to the General Assembly on December 14,
1771, that the local town officials had failed to meet their duties under the prior
laws and that corrective action was necessary by the State itself:
"Among other important Considerations, The promoting of learning very obviously
calls for Legislative Care. The Insufficiency of our present Laws for this
purpose, must be too evident, seeing nine tenths of your Towns are wholly without
Schools, or have such vagrant foreign Masters as are much worse than none: Being
for the most part unknown in their principles & deplorably illiterate."
New Hampshire Provincial Papers Vol. VII 287 (1764-1776). The General Assembly
replied on December 30, 1771:
"We beg leave to observe that we think it very a'propos that you have by order of
your message plainly pointed out the necessary [connection] between good Education
& the prosperous state of the People--for as they by the constitution have a share
in the Governmt it is certainly of importance they should be able to sustain the
part they are to bear with honor to themselves & with prosperity to the State which
without such an Education is hardly feasably But without detaining your Excellency
with a long detail of particulars, it is with pleasure we observe the extensive
care your Excellency discovers for the welfare of the people under your Governmt by
pointing out many different things as the proper objects of their attention of the
house, all which they will consider as other necessary affairs will permit and do
what they shall after deliberate consultation."
Id. at 290-91.
Against this background, the constitutional convention began its work drafting the
State Constitution in 1781. The contention that, despite the extensive history of
public education in this State, the framers and general populace did not understand
the language contained in part II, article 83 to impose a duty on the State to
support the public schools and ensure an educated citizenry is unconvincing.
Indeed, in 1795 Governor Gilman addressed the Senate and House of Representatives,
"The encouragement of Literature being considered by the Constitution as one of the
important Duties of Legislators *191 and Magistrates, and as essential to the
preservation of a free Government, will always require the care and attention of
Governor Gilman, Executive Papers & Correspondence (1795). To which the House and
"The encouragement of Literature is a sacred and incumbent Duty upon the
Legislature. Possessing a Constitution of Government which is founded upon the
broad basis of the natural rights of mankind, we feel on our part, the strongest
obligation to revere, to cherish, and to support it. Without a competent share of
information diffused generally through the community, the natural as well as the
acquired rights, and the duties to which the social compact necessarily subjects
us, must be imperfectly understood, and consequently will be liable to be perverted
and neglected. We shall therefore most cordially embrace all proper measures to
diffuse Knowledge and Information, to promote Literature and to cherish seminaries
of Learning as the most direct and certain means to perpetuate to posterity that
Constitution, which forms our Glory, our Safety, and our Happiness."
Id. This statement has significant probative value as an indication that the
contemporary understanding was that part II, article 83 **1381 imposed a duty on the
State to provide universal education and to support the schools.
We are unpersuaded by the State's argument that the fact that no State funding was
provided at all for education in the first fifty years after ratification of the
constitution demonstrates that the framers did not believe part II, article 83 to
impose any obligation on the State to provide funding. But see W. Gifford,
Colebrook "A Place Up Back of New Hampshire" 11 (1993) (resolution of Senate and
House approved July 7, 1846, granting 10,000 acres of land to trustees of Colebrook
Academy). "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. McDuffy, 415 Mass. at 606, 615 N.E.2d at 548. "While it is clearly
within the power of the [State] to delegate some of theimplementation of the duty to
local governments, such power does not include a right to abdicate the obligation
imposed ... by the Constitution." Id.
 Having identified that a duty exists and having suggested the nature of that
duty, we emphasize the corresponding right of the *192 citizens to its enforcement.
For over two hundred years New Hampshire has recognized its duty to provide for the
proper education of the children in this State. Since 1647, education has been
compulsory in New Hampshire, and our constitution expressly recognizes education as
a cornerstone of our democratic system. We must conclude, therefore, that in New
Hampshire a free public education is at the very least an important, substantive
right. See Carson v. Maurer, 120 N.H. 925, 931-32, 424 A.2d 825, 830-31 (1980);
cf. Horton v. Meskill, 195 Conn. 24, 486 A.2d 1099 (1985). The right to an
adequate education mandated by the constitution is not based on the exclusive needs
of a particular individual, but rather is a right held by the public to enforce the
State's duty. Any citizen has standing to enforce this right. See Fogg v. Board of
Education, 76 N.H. 296, 82 A. 173.
We do not define the parameters of the education mandated by the constitution as
that task is, in the first instance, for the legislature and the Governor. There is
a wealth of historical data upon which the legislature and the Governor may choose
to draw in the pursuit of their duty, spanning more than three hundred years from
the 1647 statutory mandate that youths be instructed "so far as they may be fitted
for the University," to more recently recommended standards and practices such as
the State Department of Education's 1958 report on Minimum Standards and Recommended
Practices for New Hampshire Secondary Schools. The Encouragement of Literature
clause expressly recognizes that a free government is dependent for its survival on
citizens who are able to participate intelligently in the political, economic, and
social functions of our system. The duty placed on the State encompasses
cherishing the public schools. The constitution also provides that the legislature
and the Governor have a duty to encourage "the promotion of agriculture, arts,
sciences, commerce, trades, [and] manufacturers" 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." N.H. CONST. pt. II, art. 83. The
education necessary to meet the duty to cherish public schools must, of course, "be
adapted to the various crises of human affairs." M'Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 415, 4 L.Ed. 579 (1819) (emphasis omitted).
 Given the complexities of our society today, the State's constitutional duty
extends beyond mere reading, writing and arithmetic. It also includes broad
educational opportunities needed in today's society to prepare citizens for their
role as participants and as potential competitors in today's marketplace of ideas.
Cf. *193Seattle Sch. Dist. No. 1 of King Cty. v. State, 90 Wash.2d 476, 585 P.2d 71
(1978). We are confident that the legislature and the Governor will fulfill their
responsibility with respect to defining the specifics of, and the appropriate means
to provide through public education, the knowledge and learning essential to the
preservation of a free government.
**1382 We remand the plaintiffs' petition for further proceedings consistent with
Reversed and remanded.
THAYER, J. did not sit; GRIMES, C.J., retired, sat by special assignment under RSA
490:3; all concurred.