In Count III, the issue before the Superior Court was whether the New Hampshire system of financing public education violates the Equal Protection guarantees of the New Hampshire Constitution because the petitioner school districts are treated differently from the comparison districts with respect to a students' right to an adequate education and adequate educational funding.

In general, the basis for an equal protection claim occurs when there is a state action that treats similarly situated persons differently, creating a "suspect class". In an Equal Protection analysis, a court must decide the type of "right" that is affected by the state action at issue, which will determine the appropriate level of judicial scrutiny.

The tests used by a court to determine whether a state action creating a "suspect classification" is justifiable, range from a strict scrutiny test when a "fundamental" personal right is involved, to a rational basis test when economic interests are affected.

In determining the classification of the right to an education, the Superior Court stated that, " while Claremont, which held that a free public education is Ôat the very least an important substantive right,' 138 N. H. at 192 (emphasis added), may permit a finding that the right to education is fundamental, the Supreme Court has not made such a finding. Classification of a right as fundamental under the New Hampshire Constitution is a task which properly rests with our Supreme Court."

The school districts argued that the right of each educable child to an adequate education and adequate funding is a fundamental right guaranteed by the NH Constitution.

The New Hampshire Supreme Court in its 12/93 Claremont I decision detailed the historical origins and the emphasis the Constitution placed on public education. The New Hampshire Supreme Court stated that, "Since 1647, education has been compulsory in New Hampshire, and our constitution expressly recognizes education as a cornerstone of our democratic system."

The New Hampshire Supreme Court in its 12/93 Claremont I decision also stated, "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." (emphasis added)

The school districts argued that the New Hampshire and U.S. Supreme Courts have used the word "cherish" sparingly, and each time it has been used in conjunction with education or a fundamental right.

However the Superior Court chose not to build on the Supreme Court's 12/93 Claremont I decision; instead it limited itself to holding that education in New Hampshire is an "important substantive right".