The Michigan Supreme Court heard oral arguments over the University of Michigan’s refusal to release the personal papers of Dr. John Tanton, a noted anti-immigration activist in the mid 20th century Wednesday as part of a freedom of information lawsuit. The case was not decided Wednesday.
Tanton founded the Federation for American Immigration Reform, an organization said to represent Americans “concerned” about immigration policy. He is also connected to a network of at least 13 anti-immigration groups, many of which are classified by the Southern Poverty Law Center as hate groups. Tanton died in 2019.
Virginia immigration lawyer Hassan Ahmad is the plaintiff in the lawsuit who filed a FOIA request to access Tanton’s documents in December 2016. Ahmad emphasized to The Daily Tanton’s role in creating anti-immigration policies implemented in recent years, including family separation and a citizenship question on the census.
According to Ahmad, these current policies are a chief reason he thinks Tanton’s should be viewed.
“A lot of the ideas that have come to fruition over the past four years and even before that, they all started in the Tanton papers,” Ahmad said. “You can’t tell the story of the anti-immigrant without the complete picture of John Tanton. All I’m trying to do, as a lawyer, as an advocate who believes in open government, is to tell that part of the story.”
The lawsuit was initially dismissed by the Michigan Court of Claims, a decision that was overturned in June 2019 by the Michigan Court of Appeals.
In 1984, Tanton gifted the University his personal papers after the Bentley Historical Library requested them. While he allowed immediate access to some of his papers, including some personal correspondence and writings concerning his conservation work, the University says its donor agreement with Tanton requires them to keep several boxes sealed until 2035. The University argues in court filings the agreement means the boxes are not public records under the Michigan Freedom of Information Act.
In a brief filed with the Michigan Supreme Court in September 2019, Plaintiff Attorney Philip Ellison said the gift agreement is missing from the court record. The University countered, saying they believe the court can still rule with the University, even if the agreement is not in the record.
Ahmad said if Tanton wanted to protect his papers from becoming public record, there were numerous options available to him.
“If John Tanton, when he was donating the papers, wanted to pass title to those papers after a death or after a certain period of time, he could have created a trust, he could have bequeathed them in his will, he could have done any number of things,” Ahmad said.
University spokesman Rick Fitzgerald said in an email to The Daily that the University appealed to the Michigan Supreme Court to avoid dissuading future donors from giving their documents to the University.
“The reason the university appealed this case to the state Supreme Court is because we do not want would-be donors to be deterred from donating private records of historical significance to a historical library at a public university, in this case, the Bentley Historical Library,” Fitzgerald wrote. “That would negate FOIA’s purpose of enhancing public access to information and make it more difficult for scholars, students and the broader public to understand Michigan history, including its flaws and its challenges.”
In court filings, the University asserted such agreements are normal and often used by high-profile public figures.
“Numerous Supreme Court Justices, including Chief Justice Rehnquist and Justices Blackmun, Jackson, Scalia, and Souter, have donated their papers subject to similar conditions,” a June 2019 brief said.
A press release from the Association of Research Libraries, which filed a friend of the court brief in the case, said the ARL shared the University’s concerns.
“ARL’s overarching concern in this case is that an adverse outcome for the University of Michigan could set precedent for other states with public records laws, effectively invalidating past deeds of gift that public institutions have negotiated with donors and preventing future donors from trusting public institutions with sensitive material,” the release said.
Ahmad said the University is “splitting hairs” by saying it does not possess the Tanton papers for official purposes, considering the University first requested them. If the University used the documents they would become part of the public record. The University has argued because they are storing the documents, not using them for official purposes, they are not public.
“The Court of Appeals of Michigan didn't think much of the University's arguments as to how the papers could not be considered public record,” Ahmad said. “They only become public records if they're used, possessed or maintained for an official purpose by the public entity. And here’s the University saying ‘Yeah, we have these papers … but we’re not possessing them for an official purpose.’ Well, what are you holding onto them for, then?”
Michigan Law professor Michael Steinberg, former legal director of the ACLU of Michigan, said this case has significant civil liberties implications.
“From a civil liberties perspective, universities should not be conspiring with private entities to hide racist documents from the public,” Steinberg said. “As the court ruled, if someone does not want certain papers revealed to the public before their death, they can easily leave those papers to a university in their will.”
Daily Staff Reporter Dominic Coletti can be reached at firstname.lastname@example.org.
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