Should documents donated to a public university be made public immediately?
That question is at the center of a lawsuit currently before the Michigan Supreme Court.
The case involves the papers of Dr. John Tanton, an ophthalmologist in Petoskey who was "one of the most prominent opponents of immigration in America," according to Terry McDonald, director of the Bentley Historical Library at the University of Michigan. That's where Tanton’s papers are today.
Tanton’s anti-immigration legacy
Tanton’s views on immigration grew out of his interest in population control as a path to environmental conservation. In the 1980s, it was Tanton’s conservation work that first got the library’s attention.
Under an agreement with Tanton, some of his papers would remain closed until 2035.
“One of the things that archives do is they keep track of people and start to track their activities and think, 'Gee, would this be the kind of person that might have a collection that we'd like to have donated to the library?'” said McDonald.
Tanton founded several influential groups, including the Federation for American Immigration Reform (FAIR). During his early activism, Tanton sought to forge alliances with progressives, and worked extensively with Planned Parenthood and the Sierra Club. But over the years Tanton's views became more openly racist. He embraced ideas like eugenics, and bemoaned the erosion of a white majority in the United States. The Southern Poverty Law Center calls Tanton a white-nationalist, and FAIR a hate group.
Tanton died in 2019 at the age of 85. His activism slowed in his later years, but Tanton had a lasting influence. In the Trump administration, several people with ties to his organizations worked on immigration policy.
Tanton explained his immigration views in a video tribute produced by Starlight Media.
“People who work on this sort of thing are often called anti-immigrant, or anti-immigration,” Tanton said. “And that would be only appropriate if you would call a person who went on a diet anti-food. We’re not anti-immigrant. The question is how much immigration?”
Acquiring, and opening collections
The Bentley Library collects materials that promote the study of the history of the state of Michigan and U of M. McDonald says the library eventually secured a donation from Tanton: 25 bankers boxes' worth of his papers.
“In this specific case, Dr. Tanton originally wanted the entire collection to be closed, and it was only through the course of negotiations that the first 15 feet – or 15 bankers boxes – of his materials were opened,” McDonald said.
Under an agreement with Tanton, the other 10 boxes would remain closed until 2035. And that stipulation led to the case before the Michigan Supreme Court.
Libraries and other archives routinely acquire writings and other collections. It’s also common for those acquisitions to come with restrictions. McDonald says one example is redacting names in collections from gay rights activists who want to keep their personal lives private.
“We are agnostic about the content,” McDonald said. “We are strongly behind the principle that a private individual should be able to give records to a public archive with the expectation that some period of closure can be recognized.”
The lawsuit
This dispute over Tanton’s papers started with an immigration attorney in Virginia named Hassan Ahmad. As the U.S. tightened its immigration laws in recent years, Ahmad wondered about the roots of those changes.
"The university ... sought the papers out in the first place. Well, if they weren't seeking them out for an official purpose then what were you seeking them out for?" -Hassan Ahmad
“Where is all of this coming from? Who was their architect, so to speak? And all roads, of course, led back to John Tanton,” Ahmad said.
In 2016, Ahmad realized part of the Tanton collection was closed, so he filed a Freedom of Information Act (FOIA) request with U of M to open the last 10 boxes. The university told him it would grant his request then changed its mind.
Ahmad took them to court. U of M won at trial court, but the Court of Appeals sided with Ahmad.
One of the legal questions is: Are the papers part of the university’s official purpose?
Ahmad says, yes.
“Ultimately, it's about transparency,” he said. “The university is the one that sought the papers out in the first place. Well, if they weren't seeking about for an official purpose, then what were you seeking them out for?”
But the attorney representing U of M, Adam Unikowsky, told the Supreme Court justices the papers don’t serve an official purpose.
“They’re Mr. Tanton's private records,” he said during oral arguments on January 6. “They're merely being stored by the government. They don't record any government activity. In fact, the complaint itself says that plaintiff wants to use these documents to shed light on federal immigration policy, nothing to do with the university or the functions of the government of Michigan.”
U.S. Inc., which runs Tanton's website, declined to comment for this story. His wife, Mary Lou Tanton, did not return our calls.
Longtime Michigan media lawyer Herschel Fink says the state’s FOIA law favors releasing documents unless there’s a specific, legal exception. He believes U of M should make its case to the state legislature.
“If the legislature agrees, they'll draft an express exemption for this category of documents,” Fink said. “But there isn't one in there now. So therefore, these documents should be released.”
Possible effects on donations
Bentley Library Director Terry McDonald says opening the Tanton papers 14 years ahead of schedule is shortsighted and would have a chilling effect beyond this case.
“The public will have access to these records every single day in perpetuity,” he says. “If the Supreme Court rules that those collections are immediately open, then the effect of this will be that almost no private individual with any kind of concern about that will donate their collections to a public university archive.”
Although this is a Michigan court case, public universities in other states have taken an interest. The library systems for the universities of California, Illinois, and Iowa filed a brief supporting U of M. But Ahmad argues Tanton’s legacy only makes the case for opening the documents more compelling.
“John Tanton created a movement from Michigan that has had a massive effect on immigration policy, not just in the last four years, but over the last 40 years. I really can't imagine a stronger public interest,” he said.
The Michigan Supreme Court could send the case back to a lower court because of other legal issues. A decision in the case is expected before the Court’s term ends in July.
Editor's note: U of M holds Michigan Radio’s broadcast license.
