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39. If the professors challenge the constitutionality of the appropriations provision, is the court likely to uphold the provision?
A state university adopted a new regulation prohibiting certain kinds of speech on campus. Students, staff, and faculty convicted by campus tribunals of violating the regulation were subject to penalties that included fines, suspensions, expulsions, and termination of employment. The regulation was widely unpopular, and there was a great deal of public anger directed toward the two tenured professors who had drafted and promoted it. The following year, the state legislature approved a severable provision in the appropriations bill for the university declaring that none of the university's funding could be used to pay the two professors, who were specifically named in the provision. In the past, the professors' salaries had always been paid from funds appropriated to the university by the legislature, and the university had no other funds that could be used to pay them.
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Article I, Section 10 of the Constitution prohibits states from passing ex post facto laws. An ex post facto law is legislation that retroactively alters the criminal law (not civil regulation) in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.
The Eleventh Amendment bars any federal suit «against any one of the states by citizens of another state, or by citizens or subjects of any foreign state.» In other words, the Eleventh Amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party's or foreign government's claims against a state government. See Hans v. Louisiana, 134 U.S. 1 (1890).
The Full Faith and Credit Clause, Article IV, Section 1 requires states to honor (or give «full faith» and «credit» to) any rulings, decisions, and public records from other states. This Clause requires federal courts to only give full faith and credit to state laws that don't conflict with federal laws.
A is correct. The court is not likely to uphold the appropriations provision naming the two professors and declaring they not be paid by state funding because it amounts to a bill of attainder. The provision names the professors, deprives them of salaries (which amounts to a punishment), and offers no trial. See Lovett, 328 U.S. 303.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. It is true that the court is likely to strike down the provision, but not because it is an ex post facto law. The ex post facto Clause does not apply to laws attaching civil consequences to past conduct. In this case, the provision does not alter the criminal law but provides for the punishment of particular people, without trial, by depriving the two named professors of their salaries. The fact that the professors' conduct pre-existed the state law would be significant if the state law provided for a criminal penalty.
C is incorrect. This is a misstatement of the law. The Eleventh Amendment does not give state legislatures plenary power to appropriate state funds. It provides for state sovereign immunity from certain kinds of adjudications in federal court. Moreover, even when a state properly appropriates funds, it cannot do so in violation of citizens' constitutional rights unless some exception applies. Here, the provision is a bill of attainder and would be held unconstitutional.
D is incorrect. The Full Faith and Credit Clause would require the enforcement of validly-enacted state law. Here, however, a court would not need to enforce this provision because it is unconstitutional as a bill of attainder.