MEMORANDUM OPINION AND ORDER
Before the Court are defendant-objectors' motion to alter or amend this Court's January 24, 1995 memorandum opinion and order pursuant to FED. R. CIV. P. 59(e), motion for leave to supplement the motion to alter or amend, and motion to stay the Court's remand order pending further proceedings in this matter. As set forth below, the motions are granted in part and denied in part.
In their motion to alter or amend the judgment, defendant-objectors have introduced, for the first time in these proceedings, the Rules of Procedure for the conduct of detachment hearings before the Thornton Township Trustees of Schools. Defendant-objectors do not actually say that these rules would be applicable to the administrative hearing on this matter, and indeed, since the Thornton Township trustees are not the only participants in deciding the issue, see 105 ILCS § 5/6-2, it is not altogether clear that these rules would govern the proceedings. I will assume, however, for purposes of this motion that the rules are applicable. That does not alter my previous conclusion that this is not a state "court." Applying the functional test required by Floeter v. C. W. Transport, Inc., 597 F.2d 1100 (7th Cir. 1979), I do not agree that the fact that in form certain procedures are similar to that of a judicial proceeding is sufficient to make the hearing in question essentially one of judicial character. For example, there is no requirement that the decision makers -- the various trustees -- have legal training, evidence is not confined to that allowed by state rules of evidence, and the rules of procedure themselves can be changed at any time by the trustees simply for purposes of the particular hearing.
Even if I were persuaded that the board of trustees was the functional equivalent of a judicial proceeding, I would nonetheless be required to remand this case. Removal can be sustained under Section 1443(1) only if the defendant-objectors demonstrate that (1) the right allegedly denied them arises under a federal law providing for specific rights stated in terms of racial equality, and (2) they are denied or cannot enforce the specified federal rights in the state courts due to some formal expression of state law. Johnson v. Mississippi, 421 U.S. 213, 219-20, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975) (citations omitted). In the present case, the defendant-objectors have failed to satisfy the Johnson test.
In their removal petition, the defendant-objectors alleged that federal removal jurisdiction was proper because the proposed annexation "would occasion a violation of the Fourteenth Amendment" by creating an impermissible "incremental segregative effect" on the school districts involved. Defendants' answer, filed on January 31, 1994, also asserted a violation of the Fourteenth Amendment through the alleged creation of a "State compelled dual system" of education.
Even if defendant-objectors are correct in their claim of a violation of the Equal Protection Clause, they have failed to demonstrate that they cannot enforce this right in state court. The defendant-objectors insist that their rights are denied by a formal expression of state law, specifically Section 7-2b of the Illinois School Code, which provides in part:
Any contiguous portion of a high school district that constitutes 10% or less of the equalized assessed value of the district shall upon petition of two-thirds of the registered voters of the territory proposed to be detached and annexed be so detached and annexed by the regional board of school trustees if granting such petition shall make the affected segment of the boundaries of the high school district the territory is proposed to be annexed to identical, for the entirety of such affected segment, to the boundaries of the elementary school district in which the territory is located. . . .
The regional board of school trustees shall have no authority or discretion to hear any evidence or consider any issues except those that may be necessary to determine whether the limitations and conditions of this Section have been met.