Former state Commissioner of Education Charles Marston testified that the enforcement mechanism of withholding state aid for noncompliance places the school districts in a "catch-22" situation; that is, the state exercises a fiscal penalty when the reason for noncompliance is fiscal in nature.

The New Hampshire Supreme Court in its 12/17/97 Claremont II decision held that;

"The trial court, in the absence of legislative action, accepted a definition of educational adequacy developed by the State Board of Education.

The definition then establishes at length a system of shared responsibility between State and local government. This definition, however does not sufficiently reflect the letter or the spirit of the State Constitution's mandate. The constitution places the duty to support the public schools on Ôthe legislators and magistrates.' N.H. CONST. pt. II, art. 83.

Thus, in the first instance, it is the legislature's obligation, not that of individual members of the board of education, to establish educational standards that comply with constitutional requirements."

The school districts in their Amended Petition, state that the legislature and the governor failed to spread the opportunities and advantages of education adequately and equitably. The school districts seek substantial equality, not precise equality.

The Superior Court rejected the school districts' argument that educational adequacy encompasses the concept of equity. The Superior Court noted the Supreme Court in Claremont I did not mention equity or uniformity, that it did not state that adequacy and equity are interchangeable concepts and that the state's definition of educational adequacy does not require educational equity or uniformity among all school districts.

The school districts argued this narrow interpretation overlooks the fact that the Supreme Court's Claremont I decision was premised upon the existence of a statewide, unitary system of education and that the state's definition of adequacy incorporates the Minimum Standards which establish a uniform threshold level which the school districts must meet.

The Superior Court's reasoning that adequate does not encompass equity or uniformity gave it the rationale for discounting the evidence of the disparities that exist between the school districts and of the testimony and expert report of the school districts' education expert witnesses Van Mueller, EdD. and Terry Schultz, PhD.