PER CURIAM:
Appellants, nontenured faculty members employed under one year contracts by Southern University, a Louisiana State School, were summarily discharged pursuant to LSA-R.S. 17 :3101-3109 in the midst of campus disruptions in the fall of 1972.
The letter of discharge to Dr. Johnson from the President of the University asserted that he had neglected his contractual responsibilities by failing to meet classes, by encouraging students not to attend classes and had further served as an advisor to dissident students and had been "instrumental in encouraging the disruption of the normal academic process of the university."
The letter to Dr. Baker asserted that he had been an advisor to the leaders of the dissident students and had been "instrumental in promoting activities which disrupted the normal education process of the university."
On advice of counsel, rather than taking an administrative appeal pursuant to § 3103(5) of the statute appellants brought a § 1983 action in the Federal District Court seeking a temporary restraining order and preliminary and permanent injunctions requiring reinstatement with backpay and compensatory damages on the grounds that failure to afford a pre-termination hearing constituted a denial of due process of law and that appellants were dismissed for exercising protected First Amendment rights.
After a lengthy hearing, the District Court dismissed appellant's claims due to their failure to exhaust the available state administrative remedy, however, the Court found that they had not waived their right to appeal by failing to pursue it within the statutory time limit since the president of the university had inadvertently neglected to inform them of their right to appeal in the letters of discharge. An appeal from the District Court order is now before us.
See L.S.A. — R.S. 17 :3104, note 2, supra. Appellants were then permitted to file a protective appeal. The administrative proceedings have been stayed pending termination of this litigation.
Although raised by neither party below or on appeal, careful consideration of appellant's complaint and prayer for relief regretfully compels us to conclude that this litigation falls within the exclusive satrapy of 28 U.S.C.A. § 2281, one of our three-judge court acts which history proves to be both awkward and unnecessary.
Since § 2281 is jurisdictional, it may not be waived by the parties.
Although appellants sought an injunction ordering immediate reinstatement, they also requested the District Court to "enjoin defendants and any person or persons acting in concert with them from denying plaintiffs their procedural due process rights under the Fourteenth Amendment to the United States Constitution." By their complaint, the evidence and persistent highly skilled arguments, appellants necessarily attack and bring into question the validity of the summary procedure provided by LSAR.S. 17:3103(5) under the due process hearing requirements of Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. Any injunction, negative or positive, would have the effect of mandating that the university officials not follow the procedures expressly prescribed by a statute of statewide application. That is enough to deprive a single District Judge of jurisdiction. See our extensive opinion in Sands v. Wainright, 5 Cir. (en banc), 1973, 491 F.2d 417; see also Hall v. Garson, 5 Cir., 1970, 430 F.2d 430.
The LSA — R.S. 17:3102(1), note 2, supra.
We vacate and remand to the District Court for the appropriate proceeding fort convening a three-judge court.
Obviously, we intimate no views on the merits.
Vacated and remanded