We're Suing To Compel Disclosure of the Tanton Papers

Dr. John Tanton

​Updates here; follow me on Facebook or on Twitter @HMAesq for notifications; on Twitter follow #TantonPapers. Last update: 09/30/2021

BACKGROUND

As an immigration lawyer and advocate, in the wake of ICE raids, stalled immigration reform, detention of children, denial of due process, ramped up deportations, and targeted travel bans, I am committed to stop what I see as the legalization of xenophobia which will have the effect of creating a permanent and disenfranchised underclass.

There is a purposeful and intentional movement to achieve that nefarious goal, to which there must be a purposeful and intentional response, and to thwart against which there should have been a purposeful and intentional movement.

There have been various anti-immigrant, exclusionary policies pushed over the past 15 years. Behind modern players like Kris Kobach, Jeff Sessions, Stephen Miller, Steve Bannon, and others in the new administration is the trifecta of anti-immigrant organizations: FAIR, NumbersUSA, and CIS. Like any organization, there have been lots of hands stirring the pot for a very long time. But sometimes, you can find a lynchpin. I believe one such lynchpin behind all three of these organizations is one man: John Tanton. 

Dr. Tanton is best described as an environmentalist turned immigration restrictionist, and someone at least sympathetic to white nationalism. The groups he founded and/or nurtured - FAIR, CIS, NumbersUSA, and other ones such as US Inc. and US English have collectively stalled meaningful immigration reform for decades. Kris Kobach is of counsel to the legal arm of FAIR. The former executive director, Julie Kirchner, is now the ombudsman of USCIS. FAIR's writeups strongly influence immigration policy, as in the case of the administration's "Declined Detainer Outcome Report." The list goes on.

These organizations inform US immigration policy, and Dr. Tanton was the grand wizard behind them. Bans, raids, private prisons, deportation as a cure-all, fanning hate of refugees and immigrants? Much of it traceable back to FAIR and, ultimately, Dr. Tanton.

THE TANTON PAPERS

Tanton was a prolific writer, thought leader, and connector. He has been suffering from Parkinson's and is apparently retired from public life, but his thought lives on.

His papers from 1960 to 2007 were donated to the University of Michigan's Bentley Historical Library and are currently located in 25 boxes. Boxes 1 - 14 are open without restriction, but boxes 15 - 25 are closed until April 6, 2035. 

The modern version of Tanton's thought has become White House immigration policy, and so far has a long way to go to be reversed by President Biden. I believed the public interest is served by investigating that connection. That means unsealing boxes 15 - 25.

What's in the Sealed Tanton Papers? According to the BHL, among other things:

• Meeting minutes of FAIR from its inception in 1979
• Nine folders labelled "Pioneer Fund" (a group founded to promote the genes of white colonials that funds studies of race, intelligence and genetics)
• Voluminous folders on immigration, including state-specific tomes
• Information on various other organizations including CIS, IRLI (to which Kobach has been of counsel for many years)
• Dr. Tanton's private correspondence 

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In short, the sealed Tanton papers will shine a light onto the conceptual foundations of the anti-immigrant movement, as well as its strategic plans and key players. It may help us understand the origins of the groups currently informing White House immigration policy, and how the thought evolved from Tanton's environmental concerns to the policies we've seen in 2017, including the Muslim bans, ICE raids, and ramped up enforcement.


THE FOIA ACTION

On December 16, 2016 I filed a Freedom of Information Act (FOIA) request with the University of Michigan. As expected, the University requested additional time. Eventually they responded, asking for a deposit to cover one-half of the estimated FOIA expenses.

The Southern Poverty Law Center and the Michigan chapter of the Council on American-Islamic Relations both recognized the importance of transparency here.  The SPLC has been reporting on the Tanton hate networks for decades. 

I sent in the money to the University, but on May 8, 2017 my request was denied. The University took the position that since the records were sealed, they were not "public records" within the meaning of the Michigan Freedom of Information Act.

I filed an appeal with the President of the University of Michigan on May 16, 2017. I argued that under binding Michigan Supreme Court precedent, the documents still were public records retained by a public body for an official purpose. The presence of some mysterious arrangement to seal the documents was simply apropos. I sent in a draft lawsuit, indicating my intent to avail of judicial process if the denial was not overturned.

On May 30, 2017, the President denied my appeal. Counsel for the President Liz Barry wrote the sealed papers were restricted due to a valid charitable gift agreement, and failure to abide by that agreement would chill potential future donors from donating key historical papers, undermining the University's essential function to preserve that history.

Having exhausted all options with the University, on Monday, June 12, 2017 I filed a lawsuit against the University seeking an order compelling production of the Sealed Tanton Papers. The case has been assigned number 17-000170-MZ by the Michigan Court of Claims. The suit was dismissed by the Court of Claims on Nov 20, 2017 and an appeal was filed to the Michigan Court of Appeals. Having been fully briefed, oral arguments were heard at 11 am on August 15, 2018.

On June 20, 2019, the Court of Appeals ruled in my favor, finding that the Court of Claims improperly dismissed the action, and all but finding that the Sealed Tanton Papers are public records under the Michigan FOIA. 

The University filed leave for appeal before the Michigan Supreme Court, which granted same, but ultimately ruled affirming the Court of Appeals decision on April 9, 2021. The case was remanded back to the Court of Claims, finally, for trial. The University, as expected, filed a Motion to Dismiss, which was denied on September 30, 2021.

The papers emphatically are public records. A public body like the University cannot insulate records from the Freedom of Information Act simply by private agreement, and that in any case, the public interest on these facts trumps whatever privacy or other interest may suggest against disclosure.

Instead of allowing a trial, the University sought leave to appeal to the Michigan Supreme Court. That request was granted, and oral arguments were held on January 6, 2021. A decision is forthcoming, hopefully by July 2021.

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Ahmad v. University of Michigan: Timeline

Date	Document	Note
12/16/2016	Initial FOIA Request	Filed with U of M FOIA office.
5/8/2017	Denial of Initial FOIA	FOIA office says determination that Tanton Papers were not public records made after deposit was rec'd
5/16/2017	Appeal of FOIA Denial	Filed with Office of President, U of M
5/30/2017	Denial of FOIA Appeal	U of M says private charitable gift agreement takes Tanton Papers out of ambit of FOIA
6/12/2017	Lawsuit: Ahmad v. U of M	Filed after exhausting all appeals with U of M. Included as exhibits all correspondence to/from U of M FOIA office.
8/10/2017	Motion to Dismiss	Argues Tanton Papers are not public records because not "used" or "possessed" by public body until 2035; also privacy exemptions apply.
10/5/2017	Response to Motion To Dismiss	Argues official purpose in acquisition of papers triggers FOIA; premature to argue exemptions but public bodies cannot contract their way out of public policy.
11/3/2017	Reply to Response to MTD	Argues national immigration policy is not a stated purpose of Michigan FOIA; contravenes constitutional authority of Regents of U of M; there is no official function of the Tanton Papers hence, not FOIA-able.
11/20/2017	Order Granting Motion to Dismiss	The Michigan Court of Claims granted the University of Michigan's motion to dismiss, saying the records are not public. We will appeal.
2/21/2018	Opening Brief in Circuit Court	We engaged Philip Ellison, Esq. of Outside Legal Counsel, a FOIA law firm, and appealed the grant of the Motion to Dismiss to the Michigan Court of Appeals. We argued the Tanton Papers are unquestionably public records, and a private gift agreement does not insulate them from FOIA.
3/18/2018	Motion To Expedite Scheduling Order	Mr. Ellison requests the Court of Appeals to expedite our case by treating it as a priority.
3/28/2018	Order granting Motion to Expedite	The Court of Appeals agrees to treat this lawsuit as a priority.
3/28/2018	University of Michigan's Response Brief	U of M argues the Tanton Papers are not public records because they aren't possessed for any official function, and besides frustrating the purposes of FOIA, infringes on the University's constitutional autonomy.
4/18/2018	Reply to U of M's Response Brief	The dismissal below still assumed facts not in evidence (the donor gift agreement) and even if there wasn't procedural error, the University's arguments are without merit.
8/15/2018	Oral Arguments	Both sides presented oral arguments before the Court of Appeals in Detroit.
6/20/2019	Order of Mich. Court of Appeals: Reversed and Remanded	Court of Claims improperly dismissed lawsuit; Plaintiff pled sufficient facts to allege the Tanton Papers were public records subject to FOIA.
07/31/2019	U of M's Motion for Leave to Appeal to Michigan Supreme Court	U of M takes unusual step of attempting appeal of our win at the Court of Appeals when the gift agreement between Tanton & UM has yet to be produced.
09/18/2019	Opposition to Motion for Leave to Appeal	Opposition argues case has no record; best to let case develop before bringing before Mich Supreme Court
03/06/2020	Order Granting Motion for Leave to Appeal	Appeal is allowed by MSC, now await oral argument (slowed due to COVID-19)
01/06/2021	Oral Argument	Oral argument before Michigan Supreme Court (watch)
04/09/2021	Order Affirming Court of Appeals	Michigan Supreme Court affirms order of Court of Appeals; case remanded back to Court of Claims for trial
09/30/2021	Order denying UM Motion to Dismiss	UM argues gift agreement should be applied to FOIA personal/privacy exemption; Court disagrees; orders UM to provide Vaughn index within 28 days.

Media Coverage

Latino Rebels, We’re Suing to Compel Disclosure of the Tanton Papers (Jun 6, 2017)
Ann Arbor News, University of Michigan sued over anti-immigration activist's records (Jun 20, 2017)
Patriot Not Partisan, Why You Need To Know Dr. John Tanton, Founder Of The Anti-Immigrant Movement (Aug 15, 2017)
Detroit Free Press, University of Michigan blocks release of hot-button records of anti-immigrant leader (Oct 17, 2017)
​Michigan Daily, Bentley Library faces lawsuit over access to anti-immigration activist’s documents (Oct 18, 2017)
El Vocero Hispano, Universidad de Michigan bloquea publicación de documentos controversiales de líder antiinmigrante (Oct 20, 2017)
Univision Noticias, ¿Qué quiere decir Trump cuando habla de acabar con la 'migración en cadena'? ​(Jan 15, 2018)
Splinter News, The Eugenicist Doctor and the Vast Fortune Behind Trump’s Immigration Regime (Jul 5, 2018)
Michigan Radio, Suit seeks anti-immigration documents from UM (Aug 15, 2018)
Detroit News, Lawyer fights UM to see immigration foe's papers (Aug 15, 2018)
America's Voice, As Events This Week Prove, Anti-Immigrant Hate Groups Are in Control With the Trump Administration (Aug 15, 2018)
Detroit Free Press, Anti-immigrant leader focus of 10 secret boxes at U-M library (Aug 16, 2018)
Daily Beast, University Fights to Keep Anti-Immigration Leader John Tanton's Papers Secret (Sep 2, 2018)
Library Journal, Attorney Sues for Access to Tanton Papers in Closed Archive (Sep 18, 2018)
Daily Beast, Fighting White Nationalism Is Necessary, but Not Sufficient​ (Mar 16, 2019) [OP-ED]
Detroit News, Appeals Court Rules Against UM in Bid to Keep Immigration Foe's Documents Private (Jun 21, 2019)
Detroit Metro Times, Appeal court rules against U-M in case to keep anti-immigration leader's documents sealed (Jun 22, 2019)
Michigan Daily, Appeal court rules ‘U’ to release anti-immigration documents (Jun 24, 2019)
Detroit Free Press, Appeals Court favors release of University of Michigan records of anti-immigrant leader (Jul 6, 2019)
Los Angeles Times, John Tanton, quiet architect of America’s modern-day anti-immigrant movement, dies at 85 (Jul 18, 2019)
Detroit Free Press, Anti-immigrant leader Dr. John Tanton of Michigan dies at 85 (Jul 18, 2019)
Washington Post, John Tanton, architect of anti-immigration and English-only efforts, dies at 85 (Jul 21, 2019)
Blue Virginia, The Terrifying Anti-Immigrant Agenda of John Tanton, Who Died Last Tuesday, Is Also Donald Trump’s Agenda ​(Jul 22, 2019)
Slate, The Godfather of the Anti-Immigration Movement [Podcast] (Jul 29, 2019)
Detroit Free Press, University of Michigan fights to keep files of anti-immigrant leader sealed (Aug 29, 2019)
Michigan Daily, Petition demands ‘U’ release documents of anti-immigration advocate ​(Sep 11, 2019)
The Intercept, Newspapers Quoted Anti-Immigrant Groups as Expert Sources (Sep 12, 2019)
Pittsburgh City Paper, How Pittsburgh’s Colcom Foundation is 'greenwashing' its anti-immigrant message ​(Mar 11, 2020)
WILX, Michigan’s top court takes case involving documents at U-M (Mar 15, 2020)
Michigan Live, State Supreme Court to hear case on anti-immigration activist’s papers housed at University of Michigan (Dec 29, 2020)
Detroit News, UM Tells Supreme Court anti-immigration activist's documents not public records (Jan 6, 2021)
Virginia Mercury, A Virginia attorney has been seeking sealed papers from a major anti-immigrant activist for years. What do they show? (Jan 7, 2021)