In 2016, Virginia-based immigration lawyer Hassan Ahmad sent the University of Michigan a Freedom of Information Act (FOIA) request to access sealed papers donated to the university by John Tanton, a prominent anti-immigration activist from Michigan.
But the public university denied the request until 2035.
After years of lower court battles and lawsuits, the issue will go before the Michigan Supreme Court Wednesday.
The initial interest in the boxes of papers stored in the university’s library began when Ahmad saw a photo of former Kansas Secretary of State Kris Kobach, who is known for his strong anti-immigration policies, with then President-elect Donald Trump in 2016. Kobach at the time was vying to be Trump’s pick to head the Department of Homeland Security.
Ahmad said he feared what Trump’s administration would mean for his clients and what he would be able to do as an immigration attorney.
So Ahmad started looking into who in Trump’s cabinet could affect immigration policies and what they believe in.
“Well, if Kris Kobach is going to be the type of person that’s going to be brought into this administration, we need to figure out who else is going to be on there and where they are tied to,” Ahmad said. “And the more you look, all roads lead back to John Tanton.”
So who is John Tanton?
Tanton, who died in 2019 in Petoskey from Parkinson’s disease, is known as the founder of the modern anti-immigration movement.
He was a leader in population control activism and promoted eugenics, heading organizations like Zero Population Growth. He also chaired Sierra Club’s National Population Committee and founded the Northern Michigan chapter of Planned Parenthood.
Tanton pushed for English to be the only national language of the United States, a border wall with Mexico and a limit on the number of authorized immigrants allowed in the country.
He founded a network of anti-immigration organizations, commonly known as the Tanton Network. According to the Southern Poverty Law Center, Tanton established seven organizations, including the Center for Immigration Studies, Federation for Anti-Immigration Reform (FAIR) and the Social Contract Press. He also funded another five anti-immigration organizations and sat on the board of Population-Environment Balance.
“They’re the ones that end up filing amicus briefs and advising members of Congress and policy makers and getting quoted in the media as simply the opposing side to immigration,” Ahmad said. “All the while never being taken to task seriously on the fact that their founder and ethos was rooted in eugenics, race science and white nationalism.”
Many of Tanton’s beliefs helped shape core conservative policies on immigration, which Trump campaigned on and pushed for throughout his presidency.
“I knew who [Tanton] was, but I didn’t appreciate the centrality of his role in actually building this entire movement,” Ahmad said. “It was then that I came across for the first time the fact that he had donated his papers to U of M-Ann Arbor. And when I went on to the Bentley Historical Library website, I found curiously that half of his papers were sealed until 2035.”
Tanton donated 25 boxes of documents to the university under the agreement that 10 of the boxes not be “utilized, possessed, or retained in the performance of any official University function.”
Naturally, Ahmad was now invested in finding out what is in those sealed boxes.
The battle for the papers
Ahmad submitted a FOIA request to U of M for access to the 10 sealed boxes, thinking that it wouldn’t turn into much of an issue, he said.
But the university fought him tooth and nail, denying his initial request and denying him again when he appealed. So in 2017, Ahmad sued the university.
“I started to think that there must be something here,” Ahmad said. “What’s going on? Why are they fighting so hard to keep these papers secret?”
According to the university’s library, the sealed boxes contain FAIR meeting minutes dating back to 1979, nine folders labelled ‘Pioneer Fund,’ which is a group that promotes eugenics, folders on state-specific immigration policies, information on a number of anti-immigration organizations and Tanton’s private correspondences.
The lawsuit was initially thrown out by the state’s Court of Claims ruling in favor of the university. But in July 2019, the state’s Court of Appeals dismissed the lower court’s decision, ruling that the sealed documents are public records and should be made available.
The university then appealed the case to the Michigan Supreme Court.
“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,” U of M spokesperson Rick Fitzgerald said. “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.”
For Ahmad, the issue with this lawsuit and the challenge from the university is two-fold.
Ahmad says this is a government transparency issue, but he also believes the public deserves to know from where key immigration policies that integrated in our current political climate stem.
“I think it’s problematic. Aside from the public importance of public interest in these papers that shed a light on the intellectual blueprint of the entire movement that has been creating the policies that we’ve seen implemented over the past four years, it’s just a basic issue of government transparency,” Ahmad said. “I mean should a public entity, like the University of Michigan, be allowed to contract this way around FOIA and not even have to show the contract? That’s really what this case is about right now.”
In Ahmad’s lawsuit, he includes a 1989 letter from the Bentley Historical Library asking to preserve Tanton’s papers, where the university states that the papers “reflect his important role in virtually every major contemporary conservation effort in our state and nation.”
“I think it’s a bit disingenuous for the university to now claim that they are worried about the potential chilling effect this could have,” Ahmad said. “Look, there’s a number of different things Tanton and the university could have done if he really was that concerned about not passing on his papers. He knew he was dealing with a public university. He obviously was concerned about who was going to see his papers, and it would have been very easy for him to either bequeath them to the university in his will or to create a trust to have the papers pass after a certain period of time. He did none of that.”
Ahmad believes that under Michigan’s laws, the papers are public records and subject to FOIA because they are possessed by a public entity.
The university isn’t arguing that any FOIA exemptions, such as sensitive law enforcement information, apply to the papers, Ahmad said.
“They’re not saying that any of those apply. What they’re saying is that the papers will not become public record until April 6, 2035,” said Ahmad. “There is no exemption that says that you can contract your way around. The issue is: when does a document that is given to a public entity or created in the public entity become subject to FOIA? And the answer to that question is when it is used as asked or retained by that public entity in furtherance of an official purpose … It’s kind of hard for the university to argue that they weren’t doing it for an official purpose when they were the ones seeking the papers out to begin.”
‘It’s high time’ to trace the history of these policies
“There’s something in there that even Tanton thought was not worthy or needed to be hidden until 2035 when he knew that he was going to be long gone,” Ahmad said.
But there has been a shift in politics in the last four years. An emboldened right-wing has echoed the Tanton-esque policies that energized Trump’s rallies and built his base.
People have asked Ahmad whether or not he would drop the fight now that President-elect Joe Biden is gearing up to take over the White House in a few weeks, but the issue has existed long before Trump’s political power and will likely carry on beyond Biden, Ahmad said.
“I would remind them that [anti-immigration activists] have been able to be successful and push their policies regardless of who’s in the White House. Except now, they have a galvanized and organized base,” he said. “They have succeeded, installing immigration reform under both Democrat and Republican administrations. There is no reason to expect that they will not be able to do the same under Biden.
“So we ignore these groups at our own peril. They are emboldened, they are well funded, they are together, they are coherent. And I think it’s high time that they be called to task for where they actually came from.”