Attorneys for the East High Gay-Straight Alliance won't be allowed to question the motives of Salt Lake City School Board members who banned all non-curricular student clubs.

U.S. District Senior Judge Bruce S. Jenkins made that decision late Friday after concluding that "scant justification exists for intruding into the deliberations of another branch of government."ACLU attorney Stephen C. Clark argued at a hearing last month that motive goes to the question of whether school board members engaged in unconstitutional viewpoint discrimination.

The school board imposed the sweeping ban on all city high schools in 1996 following months of controversy and student protests over efforts to establish the Gay-Straight Alliance as a student club at East High School. The policy, which affected a total of 46 clubs, is being challenged in a lawsuit filed last year by the Gay-Straight Alliance.

Clark said the ban on non-curricular clubs may have been neutral on its face but was, in fact, "a facade" to silence the gay and lesbian voices. To prove that school board members acted to discriminate a particular viewpoint, it's necessary to inquire into their motives, he said.

But Assistant Utah Attorney General Dan R. Larsen objected to that line of questioning, saying there was no discrimination and, therefore, no reason to examine motives, except those of the ACLU. According to Larsen, the board members' motives are relevant only to the ACLU's public campaign against the policy.

Jenkins said the Feb. 20, 1996, policy was an exercise of the board's legislative function rather than an administrative decision. The distinction is important because of the separation of powers.

"Generally, the personal views and underlying motives of legislators in carrying out their legislative function and in adopting general policies and rules fall beyond the reach of judicial scrutiny," Jenkins wrote in an 11-page order.

Recalling that U.S. Supreme Court Chief Justice John Marshall expressed "grave doubts" concerning judicial inquiry into legislative motives in an 1810 opinion, Jenkins said he shared those doubts.

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"Inquiry into the personal motivations of individual legislators proves to be a 'hazardous matter,' problematic at best," Jenkins wrote. "In adopting a particular measure, a legislator may act from a variety of motivations, some laudatory, some not. Which of those motives should control for constitutional purposes?"

Courts are on a "much surer footing" when it comes to addressing the effect of a legislative action and in measuring whether it is discriminatory, he added. In that respect, the Gay-Straight Alliance has yet to show how the 1996 policy had a discriminatory effect upon their viewpoint since it applied to all non-curriculum-related clubs, regardless of viewpoint.

"Absent at least an allegation of that kind of discriminatory effect, the court is not called upon to examine the actual motivations of the board in adopting that policy," Jenkins said.

The judge ordered the lawyers in the case to complete the questioning of witnesses -- minus the motives of board members -- by Feb. 12 and be prepared for a pre-trial conference on April 16.

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