An irony of significant proportions seems to have escaped unnoticed from the pen of the judge who recently ruled in the Ward Churchill case.

When Judge Larry J. Naves ruled (Daily Camera, July 9) that the Colorado Board of Regents were immune from suit because in dismissing Churchill as they did they were operating as a quasi-judicial body, the judge unwittingly summoned up a history of Anglo manipulation of that very same notion.

I refer not to immunity in the legal, but the medical sense. In a chapter of history that Professor Churchill wrote about–to the consternation of some of his critics– the westward-marching settlers and the U.S. Army may have deliberately introduced smallpox to the Indians by supplying them with disease-infested blankets.

Lacking immunity from the disease, the Indians sickened and died in large numbers. Their ranks decimated, they proved unable to offer effective resistance to the Anglo invaders and went down to defeat.

Immunity, then—or, rather, the Indians’ lack of it–was what enabled white men to achieve what they had been unable to do otherwise, namely defeat their adversary on the field of battle.

How fitting, then, that to dispatch a modern-day Indian scholar, the judge deployed the legal doctrine of immunity to deny Churchill redress for a violation of his constitutional rights. What the establishment failed to achieve in a jury trial, something approaching a fair fight, it took away after the conclusion of the case when the judge decided the Regents were, after all, immune from suit.

But were they entitled to this defense by reason of acting as a “quasi-judicial” body? Not in my book. Evidence came out during the trial that a number of them decided that Churchill was guilty before the fact, indeed called for his head even before the campus investigated him.

Moreover, only a handful of the Regents are lawyers, retired judges, or hearing officers with experience in due process, standards of proof, and the need to withhold judgment until all the evidence is in. The judge’s overbroad ruling calls for reversal. And we should see its application of the immunity doctrine in the ironic light that history exposes.

Richard Delgado

Professor of Law

Seattle University

Seattle, Wash.