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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 17, 2001
 

DAVID SHARP,
 

Plaintiff-Appellant,
 

v	 No. 116171
 

CITY OF LANSING,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

PER CURIAM
 

In this case, Plaintiff David Sharp brought a reverse
 

discrimination claim against the city of Lansing for its use
 

of an affirmative action plan in hiring decisions. Plaintiff
 

alleged violations of the Michigan Civil Rights Act (CRA)1 and
 

1MCL 37.2101 et seq.
 
the Equal Protection Clause of the Michigan Constitution2.
 

The trial court granted summary disposition for the city,
 

finding plaintiff's claims barred by the "safe harbor"
 

provision of MCL 37.2210. The Court of Appeals upheld the
 

dismissal.3 238 Mich App 515; 606 NW2d 424 (1999). 


It is beyond question that the safe harbor of the CRA
 

shields a public employer with a Civil Rights Commissionapproved affirmative action plan from liability under the CRA
 

for acts undertaken pursuant to that plan. Principally at
 

issue is whether the safe harbor provision also shields such
 

an employer from constitutional equal protection challenges.
 

We hold that it does not. We affirm in part the decision of
 

the Court of Appeals, reverse it in part, and remand the case
 

to the trial court.
 

I
 

BACKGROUND
 

Plaintiff wanted to be a firefighter with the city of
 

Lansing Fire Department. He believed himself qualified, since
 

he was a certified firefighter and the fire chief in Onondaga
 

Township. For six consecutive years, 1990-1995, he applied
 

for a firefighter position with the city. Each time he was
 

2Const 1963, art 1, § 2.
 

3It reversed in part, allowing plaintiff to amend his


complaint to claim discrimination based on residency. This


aspect of the ruling is not in dispute.
 

2
 
denied employment. He believes that the city wrongfully
 

refused to hire him because he is a Caucasian male.
 

The reason for the repeated rejection, according to
 

Sharp, was the city's affirmative action plan.4 The plan was
 

formally approved by the Civil Rights Commission in April
 

1987, pursuant to § 210 of the CRA. That provision generally
 

encourages employers to implement voluntary affirmative action
 

plans and sets forth a procedure for doing so. 


Plaintiff sued the city, seeking damages, an injunction
 

barring further use of the affirmative action plan, and a
 

position with the city fire department. He argued that § 210
 

did not bar his claim and that the city's plan operated
 

unconstitutionally with respect to him. Defendant disagreed
 

and moved for summary disposition on the ground that the safe
 

harbor of § 210 precluded all liability. The trial court
 

granted the motion before the close of discovery, relying on
 

MCR 2.116(C)(8), (10). It concluded that the CRA provided the
 

exclusive remedy for discrimination claims in the state and,
 

therefore, such a claim was barred in this instance.
 

The Court of Appeals affirmed the trial court's grant of
 

4The details of the plan itself are not central to the


questions presented in this case. The stated goal of the plan


was to increase the percentage of minorities and women in the


fire department, which was composed predominantly of white


males. In the interest of achieving its goal, the city made


race and gender factors in hiring decisions.
 

3
 
summary disposition, relying on Cole v General Motors Corp.5
 

The panel believed that it was bound by the precedent of Cole;
 

but disagreed with the reasoning employed there. It stated:
 

Because plaintiff does not challenge the
 

constitutionality of the Civil Rights Act itself,


but only the validity of defendant's affirmative


action plan and the actions of defendant employer,


we believe that the ruling in Cole effectively


resolves plaintiff's claim in this case. Were it


not for the Cole decision, however, we would reach


a different result. [238 Mich App 519.] 


If working from "a clean slate," the Court of Appeals
 

majority6

 added, it would not interpret § 210 as providing
 

defendant employer with a shield from liability. Instead, it
 

would have subjected the plan itself to constitutional review
 

and would have held that § 210 does not "automatically" confer
 

immunity from statutory liability under the CRA. We granted
 

plaintiff's application for leave to appeal.
 

Plaintiff argues that the city's affirmative action plan
 

should not have been approved. He asserts that the plan
 

delegates too much authority to the city by allowing the city
 

to make changes to it without commission approval. He
 

contends, also, that the trial court erred by granting summary
 

5236 Mich App 452; 600 NW2d 421 (1999). Cole provided


that an employer is insulated from liability under the CRA


whenever it is insulated under title VII, its federal


counterpart.
 

6The per curiam opinion was signed by Court of Appeals


Judges Michael J. Talbot and Jane E. Markey. Judge E. Thomas
 

Fitzgerald concurred in the result only.
 

4
 
disposition before discovery ended. A genuine issue of fact
 

exists, he argues, about whether the plan ever received
 

approval from the commission. Finally, he challenges the
 

lower court's decision that § 210 completely immunizes
 

defendant's actions taken in accordance with its approved
 

affirmative action plan. 


II
 

ANALYSIS
 

This case involves the interplay of the Equal Protection
 

Clause of our constitution and the statutory framework of the
 

CRA. Art 1, § 2 guarantees Michigan citizens the right to be
 

free from racial discrimination in employment by state actors.
 

That clause provides:
 

No person shall be denied the equal protection


of the laws; nor shall any person be denied the


enjoyment of his civil or political rights or be


discriminated against in the exercise thereof
 

because of religion, race, color or national
 

origin. The legislature shall implement this
 

section by appropriate legislation.
 

The CRA extended these protections to employment in the
 

private sector. Thus, it prohibits racial employment
 

discrimination by private and government employers7

, while
 

7Section 202 provides in pertinent part:
 

(1) An employer shall not do any of the


following:
 

(a) Fail or refuse to hire or recruit,


discharge, or otherwise discriminate against an


(continued...)
 

5
 
creating a damages remedy8 for those victimized by unlawful
 

employment acts.
 

Section 210 of the CRA invites employers to implement
 

their own affirmative action policies. Under this section, an
 

employer's actions that would otherwise violate the CRA are
 

permissible, provided they are taken pursuant to an
 

affirmative action plan properly approved by the commission.
 

Section 210 provides:
 

A person subject to this article may adopt and


carry out a plan to eliminate present effects of


past discriminatory practices or assure equal


opportunity with respect to religion, race, color,


national origin, or sex if the plan is filed with


the commission under rules of the commission and
 

the commission approves the plan.
 

We presume that the Legislature intended the unequivocal
 

meaning expressed in § 210. See Nation v WDE Electric Co, 454
 

Mich 489, 494; 563 NW2d 233 (1997). It provides a safe harbor
 

for public and private employers who act in accordance with
 

properly approved affirmative action plans. However, the safe
 

7(...continued)


individual with respect to employment,


compensation, or a term, condition, or privilege of


employment, because of religion, race, color,


national origin, age, sex, height, weight, or


marital status. [MCL 37.2202.]
 

8Section 801(1) provides: "A person alleging a violation
 

of this act may bring a civil action for appropriate


injunctive relief or damages, or both." [MCL 37.2801.]
 

6
 
harbor does not shield against all claims. It merely protects
 

employers from liability under the CRA for doing precisely
 

what the statute itself invites them to do.
 

In support of its motion for summary disposition,
 

defendant presented affidavits showing that its hiring
 

decisions had been made pursuant to an affirmative action plan
 

approved by the Civil Rights Commission in 1987. Plaintiff
 

does not dispute that the commission approved defendant’s 1987
 

plan. Rather, he argues that a genuine issue of material fact
 

exists whether defendant actually used the approved plan in
 

making hiring decisions between 1990 and 1995. Plaintiff
 

contends that defendant followed different and unapproved
 

plans when making the hiring decisions at issue. Moreover, he
 

asserts, the commission "exceeded its authority" by giving to
 

defendant the discretion periodically to adjust its hiring
 

goals without commission approval.
 

The essence of plaintiff's position is that defendant's
 

periodic revision of its hiring goals after 1987 resulted in
 

the establishment of new affirmative action plans. He argues
 

that these plans should have been submitted for commission
 

approval. However, plaintiff has offered no factual support
 

for his assertions. Accordingly, he has failed to create a
 

genuine issue of material fact whether defendant relied on a
 

series of separate, unapproved plans in making the hiring
 

decisions at issue. Moreover, he has not established that
 

7
 
further discovery would uncover support for that assertion. 


Therefore, we reject his argument that summary disposition
 

entered prematurely with respect to the CRA claim.
 

In a related vein, plaintiff suggests that the commission
 

erred in failing to make findings of fact and conclusions of
 

law when it approved defendant's affirmative action plan. 


Plaintiff did preserve the issue whether the commission was
 

required under the Administrative Procedures Act, MCL 24.285,
 

to make findings of fact and conclusions of law. However, for
 

the reasons set forth in the Court of Appeals decision, MCL
 

24.285 is not applicable to this case. 238 Mich App 521.
 

Accordingly, plaintiff has not preserved the issue whether the
 

commission was required under § 210 to make findings of fact
 

and conclusions of law. Thus, we conclude that the safeharbor provision bars plaintiff's statutory claims against the
 

city.
 

But our inquiry does not end there. A state actor is
 

involved. Consequently, the protections provided directly by
 

the state Equal Protection Clause come into play. When an
 

aggrieved plaintiff alleges that a public employer denied his
 

equal protection rights in violation of art 1, § 2, the
 

employer's acts are subject to review under that
 

constitutional provision. Injunctive and declaratory relief
 

are available to restrain any acts found to violate the state
 

8
 
Equal Protection Clause.9 Hence, the mere existence of an
 

approved affirmative action plan does not insulate a state
 

employer, or its plan, from all judicial scrutiny.
 

In this case, plaintiff sought constitutional relief,
 

alleging that defendant's affirmative action plan violates
 

art 1, § 2.10 Defendant asserts that plaintiff did not
 

vigorously pursue his constitutional theory either at trial or
 

in the Court of Appeals. It argues that such a lack of
 

pursuit constitutes an abandonment of the claim, regardless of
 

how it was pleaded.11 We disagree that plaintiff failed to
 

pursue his constitutional claim sufficiently.
 

Although plaintiff's presentation of this issue was
 

somewhat scattered, the record reveals that plaintiff did
 

raise the issue at various stages of the litigation. First,
 

he challenged the constitutionality of defendant's plan in his
 

own motion for partial summary disposition, which was denied.
 

Next, he raised the issue in his motion for reconsideration of
 

9
 However, money damages are not available to an


aggrieved plaintiff under these circumstances. See Lewis v
 

Michigan, 464 Mich __ ; ___ NW2d ___ (2001). 


10In his first amended complaint, plaintiff prayed that


the Ingham Circuit Court enter an order "enjoining Defendant


city of Lansing from discriminating in employment on the basis


of race, sex or national origin . . . ." 


11Defendant characterizes plaintiff's claim as an effort


to "vindicate equal protection rights through the vehicle of


[the CRA]." Thus, according to defendant, there is no standalone claim for constitutional relief. 


9
 
the trial court's decision granting summary disposition to
 

defendant. Finally, he raised it in the Court of Appeals.
 

Indeed, the Court of Appeals itself acknowledged the issue.
 

The problem with the analyses of both the trial court and the
 

Court of Appeals is that the lower courts apparently assumed
 

that § 210 alone resolved plaintiff’s constitutional
 

challenge.
 

Hence, we find that plaintiff pleaded and pursued his
 

constitutional theory sufficiently to provide notice to
 

defendant of the claims against which it would have to defend.
 

Having preserved the issue, plaintiff is entitled to be heard
 

on his claim for injunctive relief.
 

The dissent’s conclusion that plaintiff’s constitutional
 

challenge is barred fails to appreciate that the safe harbor
 

provided by § 210 necessarily extends only to statutory claims
 

under the CRA. There is simply no requirement that a
 

plaintiff proceed through a statutory vehicle in order to seek
 

declaratory or injunctive relief against an alleged violation
 

of the state Equal Protection Clause. While the second
 

sentence of art 1, § 2 commits its affirmative
 

“implementation” to the Legislature,12 the first sentence of
 

this constitutional provision commands that “[n]o person shall
 

12
 For this reason, we hold today in Lewis, supra, that
 

we do not have authority to grant money damages or other


compensatory relief for past violations of art 1, § 2.
 

10
 
be denied the equal protection of the laws; nor shall any
 

person be denied the enjoyment of his civil or political
 

rights or be discriminated against in the exercise thereof
 

because of religion, race, color, or national origin.” The
 

duty imposed on the Legislature by the second sentence of
 

art 1, § 2 to implement art 1, § 2 is not a power to
 

ultimately define the substantive meaning of the first
 

sentence. Accordingly, while the state judiciary cannot
 

positively implement art 1, § 2, the judiciary has the
 

legitimate authority, in the exercise of the well-established
 

duty of judicial review, to evaluate governmental action to
 

determine if it is consistent with the equal protection
 

guarantees of the first sentence of art 1, § 2 and to
 

invalidate such action if it is not. In short, art 1, § 2
 

commands the Legislature to adopt measures to practically
 

implement its equal protection guarantees. This
 

“implementation” language does not mean that state and local
 

governmental entities are free to violate the substantive
 

equal protection guarantees of art 1, § 2 merely because the
 

Legislature has failed to address a particular type of
 

violation.
 

Our dissenting colleague relies heavily on an analogy to
 

federal law, particularly United States Supreme Court
 

decisions related to employment discrimination claims against
 

the federal government. The dissent portrays this case law as
 

11
 
indicating that title VII of the federal Civil Rights Act
 

(“title VII”) provides the exclusive remedy for employment
 

discrimination by the federal government. From this, the
 

dissent argues in essence that state statutes should be held
 

to provide the exclusive remedy for employment discrimination
 

claims against state or local government actors under state
 

law. As the dissent forthrightly acknowledges, this federal
 

case law can only be persuasive authority, not binding
 

precedent, in resolving the present case, which involves only
 

questions of state law. We consider the dissent’s attempted
 

analogy to federal law to be unpersuasive.
 

The dissent analogizes the present case to Brown v
 

General Services Administration, 425 US 820; 96 S Ct 1961; 48
 

L Ed 2d 402 (1976). In particular, our dissenting colleague
 

relies on language in Brown “that § 717 of the Civil Rights
 

Act of 1964, as amended, provides the exclusive judicial
 

remedy for claims of discrimination in federal employment.”
 

Brown, supra at 835. However, as the dissent acknowledges,
 

the claims in Brown were all statutory. Post at 9. Thus, at
 

most, Brown can only stand for the proposition that the Civil
 

Rights Act of 1964 provides the exclusive statutory remedy for
 

discrimination in employment by the federal government because
 

Brown did not involve a constitutional issue. Moreover, Brown
 

stated that even before the extension of title VII in 1972 to
 

12
 
cover federal employees “an action seeking to enjoin
 

unconstitutional agency conduct would lie . . . .” Id. at
 

826. Accordingly, consistent with our holding in the present
 

case, Brown accepted as an established principle that a party
 

could seek injunctive relief against unconstitutional
 

governmental action.
 

The dissent also contends that, in Great American Savings
 

& Loan Ass’n v Novotny, 442 US 366; 99 S Ct 2345; 60 L Ed 2d
 

957 (1979), the United States Supreme Court “made clear that
 

Brown’s reasoning extended to encompass the notion that title
 

VII preempts constitutionally based claims as well.” Post at
 

9. We disagree because Novotny, a case with only private
 

parties as litigants, did not involve any constitutional
 

claim. In Novotny, the male plaintiff alleged that he
 

suffered unlawful employment discrimination because he opposed
 

his former employer’s practice of discriminating against
 

female employees on the basis of sex in violation of the
 

“anti-retaliation” provision of title VII prohibiting an
 

employer from discriminating against an employee for opposing
 

a violation of title VII. In pertinent part, the plaintiff in
 

Novotny attempted to bring suit against that employer and its
 

directors under 42 USC 1985(3). Essentially, 42 USC 1985(3)
 

was the modern codification of a Reconstruction Era civil
 

rights statute that generally provided a private cause of
 

13
 
action against certain conspiracies to violate federally
 

protected rights. The Novotny Court noted its concern that,
 

if a violation of title VII could be asserted through this
 

other statute, many of the provisions of title VII would be
 

avoided. Accordingly, the Novotny Court declined to allow
 

such a cause of action.
 

We consider the dissent’s effort to analogize the present
 

case to Novotny unpersuasive for two critical reasons. First,
 

inasmuch as Novotny did not involve a governmental defendant,
 

it did not involve any constitutional claim of violation of
 

the equal protection guarantees of the United States
 

Constitution. Second, the plaintiff in Novotny was attempting
 

to redress conduct that was prohibited by title VII through
 

another, more generalized, federal statute, and his claim that
 

title VII was violated was an essential aspect of his claim.
 

In contrast, while the present plaintiff cannot proceed under
 

the CRA because of the safe harbor provided by § 210, that
 

does not mean that he cannot claim that the conduct at issue
 

by the city of Lansing is violative of the state Equal
 

Protection Clause. Thus, Novotny is simply inapposite to
 

whether injunctive relief is available against governmental
 

action that is unconstitutional if it is claimed that action
 

violates the constitutional equal protection guarantees.
 

The dissent further cites Davis v Passman, 442 US 228; 99
 

S Ct 2264; 60 L Ed 2d 846 (1979), in support of its discussion
 

14
 
 

of plaintiff’s constitutional claim. Post at 7. However, we
 

believe that Davis actually supports our analysis. In Davis,
 

a female employee of a member of congress was informed by him
 

in a letter that she was removed from her position because he
 

concluded that it was “essential” that the position be held by
 

a man. At that time, congressional employees like the
 

petitioner in Davis were not protected from employment
 

discrimination under title VII of the Civil Rights Act. See
 

id. at 247 (“[w]hen § 717 was added to title VII to protect
 

federal employees from discrimination, it failed to extend
 

this protection to congressional employees such as petitioner
 

who are not in the competitive service”). The United States
 

Supreme Court held that the plaintiff in Passman could bring
 

a cause of action directly under the Due Process Clause of the
 

Fifth Amendment on the basis of sex discrimination in
 

violation of its equal protection component. Id. at 242-244.
 

Properly understood then, Davis supports our treatment of
 

the constitutional claim in the present case. The plaintiff
 

in Davis was unable to seek relief under the generally
 

applicable federal statute against employment discrimination
 

because, as a congressional employee, she was not covered by
 

that statute. Similarly, because of § 210, the state CRA
 

provides no recourse for a person who alleges that conduct by
 

a governmental employer pursuant to an affirmative action plan
 

15
 
properly approved under § 210 constitutes unconstitutional
 

employment discrimination in violation of art 1, § 2. In
 

effect, a person who may have suffered unconstitutional
 

employment discrimination under such a plan, assuming it is
 

adopted and approved, is not covered by the CRA.
 

Nevertheless, as in Davis, such a person is able to directly
 

challenge the alleged constitutional violation.13 Indeed, the
 

Davis Court expressly stated that “this Court has already
 

settled that a cause of action may be implied directly under
 

the equal protection component of the Due Process Clause of
 

the Fifth Amendment in favor of those who seek to enforce this
 

constitutional right.” Davis, supra at 242. In support of
 

this principle, the Court referred to Bolling v Sharpe, 347 US
 

497; 74 S Ct 693; 98 L Ed 884 (1954), in which the Court held
 

that “equitable relief” was available to plaintiffs
 

challenging racial segregation in the District of Columbia
 

schools as violative of the Fifth Amendment. See Davis, supra
 

at 242-243. As the Davis Court noted, the action in Bolling
 

was predicated directly on the Fifth Amendment. Davis, supra
 

13
 Of course, the type of relief that is directly


available for a violation of art 1, § 2 is different from the


action for money damages against the federal government


available under Davis. As we have discussed above, this
 

Court’s holding today in Lewis, supra, makes clear that there
 

is no cause of action for money damages arising directly under


art 1, § 2. Rather, a plaintiff may seek injunctive or
 

declaratory relief against the alleged constitutional
 

violation.
 

16
 
 

at 243. Thus, Bolling and Davis support a conclusion that
 

injunctive relief is available to end a constitutional
 

violation without the need for any type of implementing
 

statute.14
 

The United States Supreme Court decision in Smith v
 

Robinson, 468 US 992; 104 S Ct 3457; 82 L Ed 2d 746 (1984),
 

also fails to support Justice Kelly’s view that plaintiff may
 

not directly seek injunctive relief under the Michigan
 

Constitution. Smith involved claims that a handicapped child
 

was denied a “free appropriate public education” in violation
 

of, in pertinent part, the federal Education of the
 

Handicapped Act (EHA), 20 USC 1400 et seq., and the federal
 

Equal Protection Clause. Smith, supra at 994-995. The
 

pertinent issue in Smith was whether the petitioners could
 

recover attorney fees under 42 USC 1988, which generally
 

allowed such a recovery in favor of plaintiffs seeking to
 

enforce federal constitutional rights when the specifically
 

applicable EHA, as then in effect, made no provision for
 

awarding attorney fees. The Court concluded that attorney
 

14 The dissent misapprehends our consideration of Bolling


in stating that our use of that case “to predict the effects


of a legislative act in 1972 evidences a remarkable twist of


the laws of time and space.” Post at 24, n 25. We do not in
 

any way rely on Bolling as indicating the intent of Congress


in making any amendments to title VII in 1972. Rather, we
 

rely on Bolling as indicating that a court may directly grant


injunctive relief against a constitutional violation without


regard to the content of any statute.
 

17
 
fees could not be awarded under 42 USC 1988, because Congress
 

“intended the EHA to be the exclusive avenue through which a
 

plaintiff may assert an equal protection claim to a publicly
 

financed special education.” Smith, supra at 1009.
 

Accordingly, the issue involved in Smith was actually one of
 

statutory construction or application, not of federal
 

constitutional law. Thus, Smith does not support a view that
 

a statute may preclude injunctive relief to end a
 

constitutional violation.
 

Moreover, the Smith Court stated “where the EHA is
 

available to a handicapped child asserting a right to a free
 

appropriate public education, based either on the EHA or on
 

the Equal Protection Clause of the Fourteenth Amendment, the
 

EHA is the exclusive avenue through which the child and his
 

parents or guardian can pursue their claim.” Smith, supra at
 

1013 (emphasis added). At the very most, this can only
 

reasonably be taken to support the view that, if a statutory
 

remedy is available for an alleged constitutional violation,
 

a party may be required to seek to a remedy that alleged
 

constitutional violation through the procedures provided by
 

the statute. However, as we have discussed above, plaintiff
 

cannot challenge the alleged unconstitutional discrimination
 

by defendant in this case under the CRA because of the
 

immunity provided by § 210 of the CRA. Accordingly, because
 

the CRA is not available to plaintiff, Smith provides no
 

18
 
 

support for a contention that plaintiff may not directly seek
 

injunctive relief under the Michigan Constitution.
 

Indeed, the Smith Court expressly stated:
 

There is no issue here of Congress’ ability to


preclude the federal courts from granting a remedy


for a constitutional deprivation. Even if Congress


repealed all statutory remedies for constitutional


violations, the power of federal courts to grant


the relief necessary to protect against


constitutional deprivations or to remedy the wrong


done is presumed to be available in cases within


their jurisdiction. [Smith, supra at 1012, n 15.]
 

This language makes clear that the United States Supreme Court
 

in Smith did not regard the legislative branch as having the
 

power through a statute to foreclose the ability of the
 

judicial branch to order an end to constitutional violations.15
 

Our dissenting colleague also attempts to analogize the
 

present case to a large number of lower federal court
 

decisions, see post at 16-17, in support of her position with
 

regard to plaintiff’s constitutional claim, while forthrightly
 

acknowledging that “[s]ome federal circuits have held that
 

title VII does not necessarily provide the only remedy
 

available for employment discrimination claims.” Post at 16,
 

15 Consistent with our holding today in Lewis, supra, we
 

reiterate that judicial authority under the state Equal


Protection Clause is limited to providing injunctive or


declaratory relief to nullify unconstitutional legislation or


otherwise stop a recurring violation of the state Equal


Protection Clause. As discussed in Lewis, because of the
 

language of the state Equal Protection Clause, any provision


for compensatory relief or similar measures to positively


implement the clause requires legislative action.
 

19
 
n 23. Given that we have already explained why we find the
 

United States Supreme Court decisions on which the dissent
 

relies inapposite and that federal law can at most be
 

persuasive, not binding, authority in resolving the state law
 

questions involved in the present case, we will not burden
 

readers of this opinion with a further discussion of case law
 

from the lower federal courts.
 

We note that the dissent indicates that it would not
 

allow plaintiff to pursue “parallel constitutional claims to
 

remedy wrongs cognizable under the CRA,” post at 28, which, in
 

plain language, means that a discrimination plaintiff cannot
 

say, as this one effectively has, “I do not claim that the
 

statute is unconstitutional. I only claim the way the statute
 

was used, or applied, is discriminatory and, thus,
 

unconstitutional action has been engaged in by the state.”
 

In challenging such conduct as nevertheless constituting a
 

violation of art 1, § 2 of the Michigan Constitution,
 

plaintiff is not asserting a claim that is “parallel” to an
 

alleged violation of the CRA, but rather is seeking to
 

invalidate conduct that is allegedly prohibited by the
 

Michigan Constitution even though it does not violate the act.
 

Said plainly, the unsettling position of the dissent is that,
 

if the state actor (i.e., the city of Lansing in this case),
 

commits ongoing employment discrimination that violates the
 

state Equal Protection Clause, without also violating the CRA,
 

20
 
the courts, when petitioned by the employee, have no ability
 

to put an end to the unconstitutional discrimination. In an
 

era in which one of the noble contributions of the state and
 

federal courts has been to give citizens aid against
 

discrimination, this is a startling proposition.
 

Our dissenting colleague also indicates that “the
 

language of the [CRA], case law, and the legislative record
 

persuasively support the proposition that our Legislature
 

intended the [act] to be the sole remedy for state employment
 

discrimination claims in Michigan.” Post at 20. While the
 

accuracy of this assertion may well be debatable, it is also
 

irrelevant because it is axiomatic that the Legislature cannot
 

grant a license to state and local governmental actors to
 

violate the Michigan Constitution. In other words, the
 

Legislature cannot so “trump” the Michigan Constitution.
 

Indeed, the ultimate import of the dissent is that, at
 

least in the present context, a party cannot challenge
 

discriminatory acts by a state actor in connection with its
 

application or use of a statute as constituting
 

unconstitutional discrimination under the state Equal
 

Protection Clause—at least one cannot do so without also
 

attacking the validity of the underlying statute. This is
 

profoundly misbegotten because the power of judicial review
 

does not extend only to invalidating unconstitutional statutes
 

or other legislative enactments, but also to declaring other
 

21
 
 

governmental action invalid if it violates the state or
 

federal constitution.
 

That judicial review of governmental action for its
 

constitutionality extends to governmental action in connection
 

with applying a statute, without requiring a review of the
 

underlying statute itself, is reflected in both modern and
 

historic United States Supreme Court precedent. In Batson v
 

Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986),
 

the Court held that the federal Equal Protection Clause
 

forbids a prosecutor from using peremptory challenges to
 

remove potential jurors on the basis of their race. The
 

Batson Court did not address whether the underlying provisions
 

of the Kentucky Rules of Criminal Procedure that allow a
 

prosecutor to use peremptory challenges, see id. at 83, n 2,
 

were unconstitutional, or in any way suggest that they were.
 

In fact, the Court observed that it “has found a denial of
 

equal protection where the procedures implementing a neutral
 

statute operated to exclude persons from the venire on racial
 

grounds.” Id. at 88. Likewise, in the present case, the
 

courts may review whether acts undertaken by the city of
 

Lansing pursuant to its affirmative action plan, which was
 

approved by the Civil Rights Commission under § 210, are
 

violative of the state Equal Protection Clause without any
 

need for plaintiff to challenge § 210 itself as
 

unconstitutional.
 

22
 
 

 

Moreover, this is not new law. One need only refer to
 

the venerable, and celebrated, precedent of Yick Wo v Hopkins,
 

118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886), to understand
 

this. Yick Wo involved two petitioners who were Chinese
 

citizens and who were imprisoned upon convictions for
 

violating a San Francisco ordinance that required a person to
 

obtain the consent of the local board of supervisors to run a
 

laundry business in a location other than a brick or stone
 

building. Such consent was denied the petitioners and “200
 

others who have also petitioned, all of whom happen to be
 

Chinese subjects, [while] 80 others, not Chinese subjects, are
 

permitted to carry on the same business under similar
 

conditions.” Id. at 374. In light of this obvious
 

discrimination, the Court considered the conclusion
 

irresistible that the distinction was due to “hostility to the
 

race and nationality to which the petitioners belong.” Id.
 

Accordingly, the Court held, without invalidating the San
 

Francisco ordinance, that the discrimination was violative of
 

the federal Equal Protection Clause and ordered the release of
 

the petitioners. Id. Of particular note in the present case,
 

the Court in Yick Wo stated:
 

Though the law itself be fair on its face, and


impartial in appearance, yet, if it is applied and


administered by public authority with an evil eye


and an unequal hand, so as practically to make


unjust and illegal discrimination between persons
 

23
 
in similar circumstances, material to their rights,


the denial of equal justice is still within the


prohibition of the constitution. [Id. at 373-374.]
 

Consistent with this recognition, it is axiomatic, and has
 

been for over a century, that the plaintiff here may challenge
 

the particular “application” of § 210 by defendant in
 

connection with defendant’s affirmative action policies
 

without asserting (or considering) whether § 210 is
 

constitutional.
 

We note that our decision in this case certainly does not
 

deny substantial practical effect to § 210 of the CRA.16
 

Indeed, we have held that plaintiff’s statutory claim under
 

the Civil Rights Act (and with it the possibility of
 

recovering money damages or other compensatory relief) is
 

barred by § 210. Further, plaintiff is able to bring a
 

constitutional claim under art 1, § 2 because the present
 

defendant, as a governmental entity, is directly bound to obey
 

the equal protection guarantees of this constitutional
 

provision. At least generally, that would not be the case
 

with regard to a private employer that uses an affirmative
 

action plan properly approved by the Civil Rights Commission
 

under § 210. See Woodland v Michigan Citizens Lobby, 423 Mich
 

188, 205; 378 NW2d 337 (1985) (“The Michigan Constitution’s
 

Declaration of Rights provisions have never been interpreted
 

16
 We note that the present case does not involve a


challenge to the constitutionality of § 210.
 

24
 
as extending to purely private conduct; these provisions have
 

consistently been interpreted as limited to protection against
 

state action”); Harvey v Aetna Life Ins Co, 72 Mich App 285,
 

287; 252 NW2d 471 (1976) (holding that the Equal Protection
 

Clause applies “to actions of the state and not to private
 

conduct”). Obviously, nothing in this opinion would prevent
 

such a private employer from relying on § 210 as a bar to an
 

employment discrimination claim under the CRA.
 

Ultimately, the dissent would create a special rule for
 

claims of employment discrimination in violation of art 1, §
 

2 (or at least for such claims in the affirmative action
 

context) that would preclude a plaintiff from directly seeking
 

injunctive or declaratory relief against governmental action
 

as being violative of this constitutional provision. Rather,
 

such a plaintiff would, if the dissent’s view were to prevail,
 

either have to first establish a statutory violation or argue
 

that a state statute is unconstitutional in order to directly
 

challenge the alleged constitutional violation. We see no
 

appropriate basis for imposing such a heightened duty in this
 

context.
 

III
 

CONCLUSION
 

We conclude that § 210 bars statutory liability under the
 

CRA for employment discrimination where an employer acts in
 

accordance with an affirmative action plan properly approved
 

25
 
by the commission. The decisions of the trial court and the
 

Court of Appeals dismissing plaintiff's CRA claims are
 

affirmed.
 

The existence of the safe harbor does not abrogate rights
 

guaranteed under the Equal Protection Clause of the Michigan
 

Constitution. We hold that the trial court erred by
 

dismissing plaintiff's constitutional claim for injunctive
 

relief. Moreover, plaintiff has preserved this claim for
 

appellate review. Therefore, the Court of Appeals decision on
 

the constitutional claim is reversed and the case is remanded
 

to the trial court for consideration of plaintiff's prayer for
 

injunctive relief under art 1, § 2.
 

CORRIGAN, C.J., and CAVANAGH, WEAVER, TAYLOR, and YOUNG, JJ.,
 

concurred.
 

26
 
 

 

 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

DAVID SHARP,
 

Plaintiff-Appellant,
 

v No. 116171
 

CITY OF LANSING,
 

Defendant-Appellee.
 

MARKMAN, J. (concurring).
 

I concur in the result reached by the majority because I
 

agree that § 210 shields a public employer with an affirmative
 

action plan properly approved by the Civil Rights Commission
 

from liability under the Michigan Civil Rights Act, MCL
 

37.2101 et seq., but not necessarily from liability under the
 

Equal Protection Clause of the Michigan Constitution, Const
 

1963, art 1, § 2. Cf., however, Lewis v Michigan, 464 Mich 


; NW2d (2001). Furthermore, I agree with the
 

analysis set forth by the majority in reaching this
 

conclusion.
 
 

 

However, I write separately to observe that, in order for
 

an affirmative action plan to be properly approved by the
 

Civil Rights Commission, it must comply fully with the
 

requirements set forth in § 210. Section 210's safe harbor
 

encompasses only affirmative action plans that are “adopt[ed]
 

and carr[ied] out . . . to eliminate present effects of past
 

discriminatory practices or assure equal opportunity . . . .”
 

MCL 37.2210. Therefore, where the commission fails to apply
 

these standards in its examination of an affirmative action
 

plan, the plan has not been properly approved by the
 

commission.1
 

Because plaintiff has not preserved the issue whether the
 

commission complied with the requirements of § 210 when it
 

1 In observing that “a complainant could challenge the


commission’s approval of an affirmative action plan, arguing


that the plan fails to conform to criteria required by the CRA


for approval,” post at 30, the dissent apparently does not


disagree with this proposition. However, the dissent asserts


that my “sweeping interpretation, if accurate, would render


the safe-harbor provision unworkable.” Post at 31, n 30. I
 

have difficulty understanding why my view is a “sweeping


interpretation,” when I am merely quoting verbatim the
 

statutory language, i.e., “[a] person subject to this article


may adopt and carry out a plan to eliminate present effects of


past discriminatory practices or assure equal opportunity .


. . .” MCL 37.2210. I agree with the dissent that the “safe


harbor does not protect only those plans that succeed in
 

eliminating present effects of past discrimination.” Id.
 

(emphasis added). Rather, the safe harbor protects all


properly approved plans that are “adopt[ed] and carr[ied] out


. . . to eliminate present effects of past discriminatory


practices or assure equal opportunity . . .”—but only such
 

plans.
 

2
 
 

approved defendant’s affirmative action plan, the majority
 

does not address this issue. This silence, however, should
 

not mislead some to believe that the commission possesses
 

plenary authority to shield from liability any affirmative
 

action plan. Rather, the commission is confined, not only by
 

the requirements of the constitution, but also by the
 

requirements of § 210 itself. To reiterate, under § 210, the
 

commission only has the authority to approve, and thus to
 

shield from liability under the Civil Rights Act, affirmative
 

action plans that are “adopt[ed] and carr[ied] out . . . to
 

eliminate present effects of past discriminatory practices or
 

assure equal opportunity . . . .”2 Id.
 

2 The significance of this unremarkable observation—that


the language of § 210 means what it says—arises largely in the


event that the constitutionality of § 210 is ultimately


sustained, in particular, if predicated upon the premise that


what would otherwise be unconstitutional, i.e., a hiring plan


allowing the government-as-employer to treat persons


differently on account of religion, race, color, or national


origin, is made constitutional by virtue of the standards set


forth for affording an affirmative action plan a “safe


harbor.” See City of Boerne v Flores, 521 US 507, 519; 117 S


Ct 2157; 138 L Ed 2d 624 (1997)(“Congress does not enforce a


constitutional right by changing what the right is. It has
 

been given the power ‘to enforce,’ not the power to determine


what constitutes a constitutional violation. Were it not so,


what Congress would be enforcing would no longer be, in any


meaningful sense, the ‘provisions of the Fourteenth
 

Amendment.’”); Marbury v Madison, 5 US (1 Cranch) 137, 177; 2


L Ed 60 (1803).
 

3
 
___________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

DAVID SHARP,
 

Plaintiff-Appellant,
 

No. 116171
 

CITY OF LANSING,
 

Defendant-Appellee.
 

KELLY, J. (dissenting).
 

I agree with the majority that the safe-harbor provision1
 

of the Michigan Civil Rights Act (CRA)2 bars statutory
 

liability under the CRA where an employer acts in conformity
 

with an approved affirmative action plan. I also agree that
 

the mere existence of the safe harbor does not abrogate rights
 

generally guaranteed under the Equal Protection Clause of the
 

Michigan Constitution.3 However, I cannot agree that acts of
 

an employer that are protected by the safe harbor are subject
 

1MCL 37.2210.
 

2MCL 37.2101 et seq.
 

3Const 1963, art 1, § 2.
 
 

to an equal protection challenge pursued directly under art 1,
 

§ 2. Accordingly, because I believe that our Legislature
 

intended the CRA to provide the exclusive remedy for public
 

employment discrimination claims within the act's purview, I
 

register my dissent.
 

Our constitution protects against discrimination at the
 

hands of state actors by declaring that "[n]o person shall be
 

denied the equal protection of the laws . . . . The
 

legislature shall implement this section by appropriate
 

legislation." Const 1963, art 1, § 2 (emphasis added). We are
 

bound to interpret these words in a manner that gives
 

sufficient effect to the "law the people have made." People
 

v Reichenbach, 459 Mich 109, 119; 587 NW2d 1 (1998). The
 

starting point for ascertaining the meaning of words used in
 

the constitution is to interpret them according to their plain
 

and ordinary meaning as understood by the people who adopted
 

them. Bond v Ann Arbor School Dist, 383 Mich 693, 699; 178
 

NW2d 484 (1970).
 

I. THE CONSTITUTIONAL CONVENTION OF 1961
 

The reference to equal protection "of the laws," found in
 

both the state and federal constitutions, suggests a safeguard
 

against the formation and execution of laws or legislative
 

classification schemes that operate unequally. It is well
 

settled that the equal protection guarantee is not a source of
 

2
 
substantive rights or liberties; rather, it is a measure of a
 

constitution's tolerance of government classification schemes.
 

Doe v Dep't of Social Services, 439 Mich 650, 661; 487 NW2d
 

166 (1992), citing San Antonio Ind School Dist v Rodriguez,
 

411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973).
 

It seems likely from the convention record that delegates
 

at the Michigan Constitutional Convention of 1961 had this
 

principle firmly in mind as they formed art 1, § 2. Delegates
 

from both political parties viewed the proposed equal
 

protection clause as a general statement of Michigan's
 

policies and goals with respect to public discrimination.
 

Drafters of art 1, § 2, envisioned legislators, not
 

constitutional delegates, as the authorities vested with the
 

power to implement those goals. James K. Pollock, Republican
 

chairman of the Committee on Rights, Suffrage, and Elections
 

for the 1961 convention, observed the following as he
 

presented his committee's proposed equal protection clause to
 

the delegation:
 

We felt that, in the event we wanted to have a


specific nondiscrimination clause, it would be


better to state as a general policy of the
 

constitution that there shall be no discrimination
 

based on race, religion or national origin in the


enjoyment of political or civil rights, and that
 

the legislature should have the power to enforce
 

this by appropriate legislation. [2 Official Record


Constitutional Convention 1961, pp 741-742
 

(emphasis added).]
 

3
 
 

To be sure, Delegate Harold Norris, a Democrat, expressed
 

agreement with this basic principle of legislative delegation
 

despite his disagreement with other aspects of the
 

recommendation tendered by Pollock's committee. Professor
 

Norris described the constitution as "a statement of goals and
 

not a detailing of means." Id. at 742. Don Binkowski,
 

another Democratic delegate on the Pollock committee,
 

characterized the constitution as a guiding document that
 

"must point the way" by providing a "strong, resolute and bold
 

restatement of the principles on which this country has been
 

founded." Id. at 746. He concluded his remarks to the
 

delegation by observing "[i]t is up to you to include in the
 

new constitution the statement of an individual's rights to
 

equal protection of the law . . . and to provide for
 

legislative implementation of these principles." Id.4
 

II. TITLE VII
 

We have long recognized that federal courts'
 

interpretations of the law under circumstances analogous to
 

those before us on review are highly persuasive although not
 

4See also Cramton, The powers of the Michigan Civil


Rights Commission, 63 Mich L R 5, 13 (1964) ("[Under art 1, §


2,] the legislature is empowered to create and define the


'civil rights' that it feels are deserving of protection. The


nature and scope of these rights, and the remedies available


for their violation, are left to legislative judgment.");


Smith v Dep't of Public Health, 428 Mich 540, 632; 410 NW2d


749 (1987)(Brickley, J.). 


4
 
necessarily binding on us. Continental Motors v Muskegon Twp,
 

365 Mich 191, 194; 112 NW2d 429 (1961). See, e.g., State Bd
 

of Ed v Houghton Schs, 430 Mich 658; 425 NW2d 80 (1988).
 

There is no question that legislative bodies generally
 

possess the power to enact detailed, comprehensive remedial
 

legislation that preempts parallel claims brought directly
 

under a constitution. The United States Supreme Court
 

expressly recognized this fact in Smith v Robinson5, where it
 

observed:
 

In light of the comprehensive nature of the


procedures and guarantees set out in the [Education


of the Handicapped Act] and Congress' express


efforts to place on local and state educational


agencies the primary responsibility for developing


a plan to accommodate the needs of each individual


handicapped child, we find it difficult to believe


that Congress also meant to leave undisturbed the


ability of a handicapped child to go directly to


court with an equal protection claim to a free


appropriate public education. Not only would such a


result render superfluous most of the detailed


procedural protections outlined in the statute,


but, more important, it would also run counter to


Congress' view that the needs of handicapped


children are best accommodated by having the
 

parents and the local education agency work
 

together to formulate an individualized plan for


each handicapped child's education. No federal


district court presented with a constitutional


claim to a public education can duplicate that


process. 


The Smith Court held that the Education of the
 

Handicapped Act (EA) provided the exclusive avenue through
 

5468 US 992, 1011-1012; 104 S Ct 3457; 82 L Ed 2d 746


(1984).
 

5
 
which the plaintiffs could assert an equal protection claim
 

for publicly funded special education.6 Justice Blackmun
 

recognized the possibility that broadly drafted legislation
 

could preempt an entire field of substantive law. The Supreme
 

Court further acknowledged that a comprehensive remedial act,
 

such as the EA, will rightfully preclude the availability of
 

parallel constitutional claims because such duplication would
 

undermine the thoroughness of the statutory scheme.
 

I find highly persuasive here the reasoning employed by
 

the United States Supreme Court in Smith. It is the same
 

rationale that backed the Court's earlier holdings that
 

6The statute was later amended by Congress to allow


statutory and constitutional claims in tandem. Nevertheless,


the reasoning of Smith still stands for the proposition that


a comprehensive remedial scheme will preclude parallel
 

constitutional claims. See Zombro v Baltimore Police Dep't,


868 F2d 1364, 1368 (CA 4, 1989)(using Smith for the
 

proposition that "[t]he Supreme Court has similarly


demonstrated a disinclination to entertain § 1983 actions in


which plaintiffs have bypassed a comprehensive statutory


remedy in favor of a § 1983 claim predicated on an alleged


constitutional violation"); Mattoon v City of Pittsfield, 980


F2d 1, 6 (CA 1, 1992)(relying on Smith for the conclusion that
 

"even assuming a 'fundamental constitutional right' to safe


public drinking water, it would not alter the present


analysis. Comprehensive federal statutory schemes, such as the


[Safe Drinking Water Act], preclude rights of action under §


1983 for alleged deprivations of constitutional rights in the


field occupied by the federal statutory scheme"); Pfeiffer by
 

Pfeiffer v Marion Center Area Sch Dist, 917 F2d 779, 789 (CA


3, 1990)(holding that Smith is part of a consistent
 

application by the Supreme Court of the doctrine that a


comprehensive enforcement scheme will preclude parallel
 

constitutional claims). 


6
 
Congress intended title VII7

 to provide the exclusive judicial
 

remedy for discrimination claims in the federal employment
 

sector. See Brown v General Services Administration;8 Great
 

American Fed S & L Ass'n v Novotny9; Davis v Passman.10
 

Brown involved an African-American federal government
 

employee who claimed that the General Services Administration
 

(GSA) had racially discriminated against him by failing to
 

promote him to a higher grade. He filed a complaint with the
 

GSA, then appealed to the federal Civil Service Commission,
 

both of which ruled against him. He then appealed from the
 

commission decision to a federal district court. The suit
 

alleged jurisdiction under title VII as amended by the Equal
 

Employment Opportunity Act of 1972,11 the general
 

federal-question statute,12 the declaratory judgment act13 and
 

the Civil Rights Act of 1866, as amended.14 The district court
 

742 USC 2000e et seq. (This was the Civil Rights Act of


1964. References to § 717 and § 717a are to that act. Many


courts refer to the section numbers from that act.)
 

8425 US 820, 835; 96 S Ct 1961; 48 L Ed 2d 402 (1976).
 

9442 US 366; 99 S Ct 2345; 60 L Ed 2d 957 (1979).
 

10442 US 228; 99 S Ct 2264; 60 L Ed 2d 846 (1979).
 

1142 USC 2000e et seq.
 

1228 USC 1331.
 

1328 USC 2201-2202.
 

1442 USC 1981.
 

7
 
dismissed the entire action for failure to conform to the
 

procedural requirements of § 717 of the Civil Rights Act of
 

1964.15 The Court of Appeals affirmed. Brown v General
 

Services Administration, 507 F2d 1300 (CA 2, 1974).
 

In deciding the case, the Supreme Court engaged in a
 

detailed review of the legislative history underlying the
 

enactment of the 1972 amendments to title VII. It noted that
 

comprehensive administrative, judicial and remedial schemes
 

have been included there. It viewed the enactment of § 717 as
 

clear evidence of what Congress intended when it passed the
 

1972 title VII amendments. It quoted extensively from
 

committee reports and floor debates to ascertain the will of
 

Congress, before concluding:
 

This unambiguous congressional perception


seems to indicate that the congressional intent in


1972 was to create an exclusive, pre-emptive


administrative and judicial scheme for the redress


of federal employment discrimination. [Brown, 425


US 828-829.]
 

Brown denounced the idea that circuitous pleading might
 

enable a party to avoid the preemptive scheme set forth in
 

title VII. It observed that an attempt to circumvent the
 

command of title VII would defeat Congress' purpose of
 

amending the statute in 1972. 


1542 USC 2000e-16 (title VII), as amended in 1972.
 

8
 
The crucial administrative role that each
 

agency together with the Civil Service Commission


was given by Congress in the eradication of
 

employment discrimination would be eliminated "by


the simple expedient of putting a different label


on (the) pleadings." It would require the
 

suspension of disbelief to ascribe to Congress the


design to allow its careful and thorough remedial


scheme to be circumvented by artful pleading.


[Brown, 425 US 833, quoting Preiser v Rodriguez,


411 US 475, 489-490; 93 S Ct 1827; 36 L Ed 2d 439


(1973).]
 

Ultimately, the Supreme Court concluded that the plaintiff's
 

other statutory claims were preempted by title VII. It
 

affirmed the lower courts and held:
 

[T]he established principle [found in Preiser]


leads unerringly to the conclusion that § 717 of


the Civil Rights Act of 1964, as amended, provides


the exclusive judicial remedy for claims of
 

discrimination in federal employment. [Brown, 425


US 835.]
 

Though the remedies sought in Brown were all statutory,
 

its holding was broader and unqualified. In Novotny, supra,
 

the Supreme Court made clear that Brown's reasoning extended
 

to encompass the notion that title VII preempts
 

constitutionally based claims as well. Novotny brought an
 

equal protection claim through the vehicle of § 1985(3),16 and
 

an action under § 704(a),17 the retaliatory discharge provision
 

of title VII. The Novotny Court relied on the principles set
 

forth in Brown to hold that title VII foreclosed plaintiff's
 

1642 USC 1985(3).
 

1742 USC 2000e-3(a).
 

9
 
equal protection claim. It recognized that the availability
 

of parallel constitutional relief, under these circumstances,
 

would dramatically undercut the effectiveness of title VII.
 

Comparing Novotny to Brown, the Supreme Court stated:
 

Here, the case is even more compelling. In
 

Brown, the Court concluded that § 717 displaced


other causes of action arguably available to assert


substantive rights similar to those granted by §


717. Section 1985(3), by contrast, creates no
 

rights. It is a purely remedial statute, providing


a civil cause of action when some otherwise defined
 

federal right---to equal protection of the laws or


equal privileges and immunities under the laws---is
 

breached by a conspiracy in the manner defined by


the section. Thus, we are not faced in this case


with a question of implied repeal. The right


Novotny claims under § 704(a) did not even arguably


exist before the passage of Title VII. The only


question here, therefore, is whether the rights


created by Title VII may be asserted within the


remedial framework of § 1985(3). [Novotny, supra at
 

376.]
 

The Supreme Court answered this question in the negative.
 

Applying Brown's holding broadly,18 it observed that
 

18The majority opinion relies on Davis, supra for the
 

proposition that a constitutional claim can proceed where a


plaintiff is not covered by title VII. This is accurate.


However, in analogizing the specific facts of Davis to this
 

case, the majority overlooks the distinction that the claim at


issue in Davis did not fall under the umbrella of title VII.
 

The plaintiff there, by virtue of her status as a
 

congressional employee, was not eligible for coverage under


title VII. Thus, her ability to pursue a constitutional remedy


would not undercut title VII's remedial scheme. Indeed, the


Davis Court reaffirmed Brown's exclusivity principle.
 

By contrast, this case involves an individual, Mr. Sharp,


who is protected by the applicable legislation, the CRA. He is


not barred by having a status that renders him outside the


(continued...)
 

10
 
restricting the plaintiff to an action under title VII was the
 

only way to preserve the integrity of title VII's remedial
 

scheme. Notwithstanding Novotny's broad constitutional claims,
 

the Supreme Court continued:
 

If a violation of Title VII could be asserted
 

through § 1985(3) [in the form of a constitutional


claim], a complainant could avoid most if not all


of these detailed and specific provisions of the


law. . . . Perhaps most importantly, the complaint


could completely bypass the administrative process,


which plays such a crucial role in the scheme


established by Congress in Title VII. [Id. at 375­

376.]
 

The majority responds that Novotny "did not involve any
 

constitutional claim[s]" and therefore does not aid us in
 

determining whether a statute can ever preempt a claim brought
 

directly under the constitution.19 My colleagues acknowledge
 

that Novotny brought a claim under § 1985(3), but ignore the
 

underlying substantive posture of any action pursued through
 

the vehicle of § 1985(3). Although § 1985 is certainly a
 

statute, it "creates no rights," the Novotny Court observes,
 

and is thus activated only "when some otherwise defined
 

federal right---to equal protection of the laws or equal
 

18(...continued)


scope of its contemplation. His inability to state a
 

successful claim under the CRA does not place him in the same


position as the plaintiff in Davis. Factually speaking, he


more closely resembles the plaintiffs in Brown and Novotny,


where the Supreme Court restricted access to alternative


parallel remedies. Davis, supra at 247, n 26.
 

19Slip op at 13.
 

11
 
 

privileges and immunities under the laws---is breached by a
 

conspiracy in the manner defined by the section." Novotny,
 

supra at 376. [Emphasis added.] 


Hence, § 1985 is a remedial vehicle to pursue the
 

vindication of constitutionally guaranteed rights. The
 

Novotny Court was unequivocal when it declared that a
 

violation of rights contemplated under title VII could not be
 

asserted through a § 1985(3) claim. Id. at 375-376. It
 

opined that pursuit of such a remedy would enable a
 

complainant to "avoid most if not all of [the] detailed and
 

specific provisions of the law." Id. The majority is
 

inaccurate in suggesting that using § 1985(3) to vindicate a
 

violation of a constitutional right is substantively different
 

than suing directly under the constitution. 


The majority uses its flawed analysis of Novotny as a
 

springboard from which to leap to the general proposition that
 

a legislative act can never "trump" the constitution. Nowhere
 

in Novotny can one locate the principle that the majority
 

attributes to it. Indeed, when the Supreme Court has
 

addressed the subject of statutory preemption of
 

constitutional remedies, it has reached the opposite
 

conclusion.20 It cannot be accurately said that Novotny lends
 

20See Smith v Robinson, n 6 supra, which lists federal


cases that apply Smith in finding a statutory preemption of


(continued...)
 

12
 
credence to the conclusion that a constitutional claim can
 

never be preempted by statute. 


The majority is unpersuasive in its attempt to
 

distinguish Smith v Robinson, the Supreme Court case that
 

directly addresses the principle of statutory preemption of
 

parallel constitutional claims.21 As discussed above, the
 

Smith Court held that a complainant's equal protection claim
 

was preempted by a statute, the EA. The majority reads Smith
 

to mean only that "if a statutory remedy is available for an
 

alleged constitutional violation, a party may be required to
 

seek to remedy that alleged constitutional violation through
 

procedures provided by the statute." Slip op at 18-19. It
 

then finds that Miss Smith's claims were covered by the EA.
 

and that Smith is inapposite here. 


The flaw in its logic lies in its premise. In Smith, the
 

principle claim involved the right of a handicapped child to
 

a free public education. The claim that went to the United
 

States Supreme Court was for attorney fees. Under the facts
 

in Smith, the plaintiff was covered by the act and was unable
 

20(...continued)


constitutional claims.
 

21The majority chooses not to "burden the readers of this


opinion with a further discussion of case law from the lower


federal courts," slip op at 17, but opts to ignore the


considerable line of federal cases that have applied Smith to
 

find statutory preemption of constitutional claims. See n 6.
 

13
 
to obtain attorney fees under an equal protection claim.
 

Under the facts in Sharp, plaintiff was covered by the act and
 

sought relief for various equal protection claims. Hence, in
 

each case a statutory remedy was available to and sought by
 

the plaintiff and the plaintiff sought relief, as well, for
 

the same alleged wrongs through a direct constitutional due
 

process claim. Consequently, Smith is pertinent and supports
 

my conclusion that a comprehensive legislative scheme can
 

preempt certain constitutional claims where the Legislature is
 

authorized and intends to preempt an entire field of law. 


In attempting to distinguish the holding in Smith from
 

the one I propose today, the majority points to a footnote in
 

Smith. In it, the United States Supreme Court remarks that, if
 

there were no statutory remedies for constitutional
 

violations,
 

the power of federal courts to grant the relief


necessary to protect against constitutional
 

deprivations or to remedy the wrong done is
 

presumed to be available in cases within their


jurisdiction. [Id. at 1012, n 15, quoted ante at
 

19.]
 

This observation has no bearing on what the Court in Smith
 

actually did decide: when the Legislature implements a
 

comprehensive remedial scheme to rectify certain
 

constitutional equal protection rights, the scheme will
 

preempt parallel constitutional claims. 


14
 
The footnote is dictum because the Smith Court found that
 

Congress had implemented such a comprehensive remedial scheme
 

in the EA. Examined closely, the footnote stands only for the
 

proposition that, absent a statutory scheme to remedy equal
 

protection violations, courts can grant appropriate relief
 

directly under the constitution. 


This goes precisely to my point. Indeed, if there were
 

no title VII, or no EA, there certainly would exist a role for
 

the courts in remedying the constitutional deprivations those
 

statutes address. The courts, within jurisdictional
 

limitations, would fill the void in legislation and right
 

wrongs through claims brought directly under the constitution.
 

Yet the fact that Congress did enact such legislation is
 

thought to manifest dissatisfaction with existing remedies the
 

courts were providing. It is said to evidence a desire,
 

instead, to replace unsuccessful solutions with a
 

comprehensive scheme that preempts the field, including the
 

very preexistent constitutional claims that warranted the
 

legislation. Hence, the holding of Smith is that the EA's
 

legislative history leads to the conclusion that the act "is
 

the exclusive avenue through which the child and his parent or
 

guardian can pursue their claim." Id. at 1013.
 

Therefore, despite the majority's unsubstantiated
 

assertion that a statute cannot "trump" the constitution,
 

15
 
federal courts have long acknowledged the opposite principle.22
 

Consistent with the logic working in Smith, these courts have
 

applied Brown and Novotny to hold that title VII preempts
 

constitutional equal protection claims that fall within the
 

jurisdiction of the statute23. See, e.g., Ethnic Employees of
 

the Library of Congress v Boorstin, 243 US App DC 186, 196;
 

751 F2d 1405 (1985)(observing that "[a]llowing federal
 

employees to recast their title VII claims as constitutional
 

claims would clearly threaten those same policies"); Day v
 

Wayne Co Bd of Auditors, 749 F2d 1199, 1204-1205 (CA 6, 1984);
 

Kizas v Webster, 227 US App DC 327, 345; 707 F2d 524 (1983)(a
 

Fifth Amendment claim based upon race and sex discrimination
 

22As stated in n 6, numerous federal cases have cited
 

Smith as authority for making the type of ruling that the


majority claims cannot be made. 


23Some federal circuits have held that title VII does not
 

necessarily provide the only remedy available for employment


discrimination claims. See, e.g., Beardsley v Webb, 30 F3d


524, 527 (CA 4, 1994). However, many of these decisions dealt


with claims arising from facts beyond the contemplation of


title VII, such that recognizing them would not encroach upon


the area defined by title VII. 


Even those circuits that have interpreted Brown narrowly


have not, as the majority suggests, done so on the basis of


any distinction between legal and equitable remedies. See,


e.g., Annis v Westchester Co, 36 F3d 251 (CA 2, 1994); Notari
 

v Denver Water Dep't, 971 F2d 585 (CA 10, 1992). Instead, most


have so held on the basis that they disagree about the scope


of coverage that Congress intended. The majority offers no


case holding that it is beyond the inherent power of any


legislative body to enact a statutory scheme that preempts


parallel constitutional claims. 


16
 
was barred by title VII); Purtill v Harris, 658 F2d 134, 137
 

(CA 3, 1981)(relying on Brown to hold that the Age
 

Discrimination in Employment Act, modeled after title VII,
 

preempts judicial remedies based directly on the constitution
 

for claims of age discrimination in federal employment);
 

Lawrence v Staats, 214 US App DC 438, 439-441; 665 F2d 1256
 

(1981) (a Fifth Amendment claim based on race discrimination
 

would be barred if § 717 applied); Davis v Califano, 198 US
 

App DC 224, 225, n 1; 613 F2d 957 (1979); Hofer v Campbell,
 

189 US App DC 197, 200; 581 F2d 975 (1978)(a Fifth Amendment
 

claim based on national origin discrimination was barred by
 

title VII); Richardson v Wiley, 186 US App DC 309, 310; 569
 

F2d 140 (1977); Gissen v Tackman, 537 F2d 784, 786 (CA 3,
 

1976); Lutes v Goldin, 62 F Supp 2d 118 (D DC, 1999); Brug v
 

Nat'l Coalition for the Homeless, 45 F Supp 2d 33, 42 (D DC,
 

1999); Clement v Motta, 820 F Supp 1035 (WD Mich, 1991). 


In Kizas, the United States Court of Appeals for the
 

District of Columbia rejected a reverse discrimination claim
 

brought by white clerical and support employees of the Federal
 

Bureau of Investigation. The complainants alleged that
 

including affirmative action principles in the qualifying
 

process for special agents violated their Fifth Amendment
 

constitutional right to equal protection as well as their
 

statutory title VII rights. The court concluded that the
 

17
 
plaintiffs' constitutional claim was "unavoidably foreclosed
 

by [the] precedent" of Brown. Kizas, at 345. Their sole
 

remedy was under title VII. The Kizas Court observed:
 

The Kizas complainants suggest, in repeated
 

but less than lucid argument, that the
 

Constitution's equal protection principle entails a


stricter restraint on classification by race or sex


than does Title VII and would shelter them against


"reverse" discrimination that the statute may


permit. We need not linger over this suggestion.


. . .
 

They may not circumvent the "careful and


thorough remedial scheme" Congress ordered for


them; their access to court is determined by that


effective, albeit demanding statute. [Kizas, at


345-346.]
 

III. THE CRA
 

In the instant case, Sharp is covered by the protections
 

afforded through the CRA---a legislative enactment every bit as
 

detailed and comprehensive as its federal counterpart, title
 

VII. 


Section 717 contains a general prohibition of federal
 

employment "discrimination based on race, color, religion,
 

sex, or national origin." § 717(a). Michigan's CRA contains
 

a proscription at MCL 37.2202(1), which provides in part:
 

An employer shall not . . . :
 

(a) Fail or refuse to hire, or recruit, or


discharge, or otherwise discriminate against an


individual with respect to employment,


compensation, or a term, condition, or privilege of


employment, because of religion, race, color,


national origin, age, sex, height, weight, or


marital status.
 

18
 
Section 717 also provides the Civil Service Commission
 

with the power and authority to enforce the civil rights
 

requirements of title VII. Michigan vests its own Civil Rights
 

Commission with similar enforcement powers. Article 6 of the
 

CRA delegates powers and duties to the commission, MCL
 

37.2601, and the Civil Rights Department, MCL 37.2602.
 

Section 602(c) establishes in the Department the authority to
 

[r]eceive, initiate, investigate, conciliate,


adjust, dispose of, issue charges, and hold
 

hearings on complaints alleging a violation of this


act, and approve or disapprove plans to correct


past discriminatory practices which have caused or


resulted in a denial of equal opportunity with


respect to groups or persons protected by this act.
 

In addition, § 717(c) outlines a detailed administrative
 

grievance procedure that a complainant must follow before
 

filing suit in federal district court. It gives an aggrieved
 

federal employee thirty days from a final order of the Civil
 

Service Commission to register an appeal in a district court.
 

Michigan's CRA provides an almost identical structure.
 

See MCL 37.2605-37.2606. Section 605 requires the state
 

commission to issue written findings of fact and conclusions
 

of law to support a conclusion that an employer has engaged in
 

discriminatory practices. The section also details the
 

various remedies available to the commission following a
 

finding of discrimination in violation of the CRA. Finally,
 

§ 606 provides the complainant with the right to appeal from
 

19
 
any final decision of the commission to a circuit court within
 

thirty days. 


The parallels that exist between title VII and the CRA
 

are undeniable. Similarly, the concerns apparent in Brown and
 

Novotny about parallel claims that threaten to dilute the
 

comprehensive scheme carefully crafted by Congress also exist
 

here. Michigan's CRA provides the kind of detailed scheme
 

that the United States Supreme Court recognizes as providing
 

the sole remedy for claims arising under its coverage
 

umbrella. 


IV. LEGISLATIVE INTENT
 

Moreover, the language of the act, case law, and the
 

legislative record persuasively support the proposition that
 

our Legislature intended the CRA be the sole remedy for state
 

employment discrimination claims in Michigan. The primary
 

goal of statutory interpretation is to ascertain and give
 

effect to the intent of the Legislature. Frankenmuth Mut Ins
 

v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
 

Like title VII, the CRA does not contain an express
 

description of its position in the constellation of
 

antidiscrimination law. Thus, it is appropriate to look for
 

legislative intent in other, less obvious places. Brown,
 

supra at 825. "Where the mind labours to discover the design
 

of the legislature, it seizes everything from which aid can be
 

20
 
derived . . . ." United States v Fisher, 6 US (2 Cranch) 358,
 

386 (1805).
 

To begin, the language of the CRA itself manifests an
 

apparent intent to establish a broad, comprehensive scheme
 

that "defines" and remedies violations of civil rights. The
 

preamble to the CRA begins: "An act to define civil rights
 

. . . ." 1976 PA 453 (emphasis added). It continues by
 

describing its own purpose as "to prohibit discriminatory
 

practices" and "to provide remedies and penalties . . . ." Id.
 

Thus, on its face, the CRA shows that the Legislature
 

envisioned it as comprehensive and detailed.
 

The legislative history, as gathered from House and
 

Senate bill analyses generated before the act's passage in
 

1976, bears out this suggestion. The legislative documents
 

explain that the act was intended to address the problems
 

caused by the splintered remedial systems that existed before
 

1976 in the area of civil rights. The report accompanying
 

House Bill 4055 described the bill as a consolidation of these
 

concepts into a single law that would
 

place legal and procedural recourse for all civil
 

rights discrimination within the Department of


Civil Rights, enabling the Department to provide


more effective remedies for those who have been
 

victimized by unlawful discrimination. [Emphasis


added.]
 

The bill analysis further describes the bill as a means
 

of "[outlining] more specifically the legal action a person
 

21
 
could take if that person feels that he or she has been
 

unfairly discriminated against." (Emphasis added.) The
 

"Argument For:" section of the bill analysis includes the
 

following two statements of purpose, both bearing particular
 

relevance to this case:
 

The bill would provide a uniform statutory
 

framework to deal with the many different forms of


discrimination. [Emphasis added.] 


* * *
 

The bill would include the concept of
 

discrimination enunciated by the U.S. Supreme Court


with respect to equal protection under the
 

Constitution.
 

Hence, the CRA, like its federal counterpart, was
 

intended as a vehicle to define and consolidate the various
 

remedial measures accorded by other statutes. Moreover, it
 

was envisioned as incorporating the "concept of
 

discrimination" inherent in the Equal Protection Clause.24
 

Courts have interpreted the CRA as bearing a singular
 

objective in harmony with the Michigan Constitution and as an
 

instrument to interpret and enforce its provisions. See, e.g.,
 

Thompson v Bd of Ed Romeo Comm Schs, 519 F Supp 1373, 1380 (WD
 

Mich, 1981) (interpreting Michigan law to conclude that the
 

24The Equal Protection Clause of Michigan's Constitution


is virtually identical to its counterpart contained in the


Fourteenth Amendment of the United States Constitution. They


are interpreted as embodiments of the same concepts. See,


e.g., Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977);
 

Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931).
 

22
 
"general object [of the CRA] is to define and protect certain
 

civil rights of individuals under the jurisdiction of Michigan
 

law"); Neal v Dep't of Corrections, 232 Mich App 730, 734; 592
 

NW2d 370 (1998)("[t]he act is remedial and must be liberally
 

construed to effectuate its ends").
 

I find that the intent that appears to underlie the CRA
 

supports the proposition that the Legislature meant it to
 

provide the sole remedy for public employment discrimination
 

claims in Michigan. Moreover, the United States Supreme
 

Court's decisive interpretation in Brown, Novotny, and their
 

progeny of the breadth of § 717 of title VII renders
 

convincing guidance in determining the breadth of Michigan's
 

CRA. Just as title VII provides the sole remedy for equal
 

protection claims involving federal governmental employment
 

discrimination, the CRA provides the sole remedy for Michigan
 

governmental employment discrimination.
 

V. ANALOGY
 

A Michigan complainant like Mr. Sharp is in the same
 

position as the complainants in Kizas. He may not circumvent
 

the "careful and thorough remedial scheme" that the
 

Legislature, in response to the direct call of the people, has
 

ordered for him. Kizas, at 346. His access to court "is
 

determined by that effective, albeit demanding, statute." Id.
 

He may not pursue a state constitutional equal protection
 

23
 
claim that falls within the purview of the CRA.25 Allowing
 

that a parallel and circuitous claim would dilute the CRA's
 

purpose, just as allowing Novotny to seek constitutional
 

redress would have diluted the carefully crafted scheme of
 

title VII.
 

In addition to the persuasiveness of federal analogous
 

law is the sheer counter intuitiveness of allowing an equal
 

protection claim to survive in this case. If a complainant
 

were entitled to relief under the state Equal Protection
 

Clause as an alternative to the CRA, the safe harbor provision
 

25The majority intimates that Lewis v Michigan, 464 Mich


___; ___ NW2d ___ (2001), issued with this decision, holds


that a complainant has a direct claim under the constitution


for equitable relief from an approved affirmative action plan.


Slip op at 15, n 13. The issue in Lewis is whether this Court
 

should recognize the existence of a claim for monetary damages


directly under the Equal Protection Clause. It does not


address whether a party can seek equitable relief under the


auspices of the constitution. 


The majority miscasts my position in this dissent as one


that leaves certain Michigan citizens entirely without civil


rights or constitutional protections. Also, it cites Bolling
 

v Sharpe, 347 US 497; 74 S Ct 693; 98 L Ed 884 (1954) as


assuming that Congress would amend title VII eighteen years


later to retain the availability of equitable relief directly


under the constitution. The use of a 1954 Supreme Court case


to predict the effects of a legislative act in 1972 evidences


a remarkable twist of the laws of time and space. Moreover,
 

Bolling is inapposite because it describes federal employment


discrimination remedies that existed before 1972. The 1972
 

amendments of title VII were aimed at altering the legal


foundation for pursuing federal employment discrimination


claims in the public sector. Brown, Novotny, Smith, and each
 

case upon which I rely, concern the state of employment


discrimination law after 1972. 


24
 
would be dramatically weakened. If the safe harbor were
 

destroyed, the CRA would fail in one of its essential
 

purposes: to provide for affirmative action in order to
 

alleviate past instances of discrimination. 


In turn, the delegates to the 1961 Constitutional
 

Convention would have failed in their attempt to draft art 1,
 

§ 2 as a set of policy goals "pointing the way" for the
 

Legislature. Such a result is inconsistent with the expressed
 

policy goals of the constitutional framers and the intent of
 

the Legislature in enacting the CRA. In addition, it ignores
 

the persuasive direction charted by the United States Supreme
 

Court in Brown,26 Novotny, and their respective progeny. 


26To counter the unqualified, direct holding of Brown, the
 

majority relies on a misreading of it. Brown does not state
 

that the 1972 amendments to title VII left intact the
 

availability of injunctive relief for federal employment


discrimination directly under the Fifth Amendment. There is


little question that the Brown Court regarded earlier remedies


for employment discrimination in the public sector as
 

impotent. See Brown, supra at 826 ("If administrative remedies


were ineffective, judicial relief from federal employment


discrimination was even more problematic before 1972.")


Injunctive relief, like the balance of remedies available


before 1972, effected nothing to merit celebration among


opponents of workplace discrimination. 


According to the Brown Court, that was the weakness that


Congress intended to address through the Equal Employment


Opportunity Act of 1972. Its aim was to preempt the field by


providing a comprehensive, exclusive slate of remedies,


displacing existing legal and equitable claims. I find that
 

our Legislature intended the CRA to have similar preemptive


force.
 

25
 
VI. SHARP'S INADEQUATELY PLEADED CASE
 

A more detailed analysis of whether plaintiff has pleaded
 

and preserved any other direct constitutional claim is
 

appropriate here. 


MCR 2.111 provides:
 

(B) Statement of Claim. A complaint, counterclaim, cross-claim, or third-party complaint must


contain the following:
 

(1) A statement of the facts, without
 

repetition, on which the pleader relies in stating


the cause of action, with the specific allegations


necessary reasonably to inform the adverse party of


the nature of the claims the adverse party is


called on to defend[.]
 

In his second amended complaint, plaintiff pleaded as
 

follows:
 

7. Notwithstanding rejection of Plaintiff's


application for employment as a fire fighter in the


Lansing fire department, Defendant city of Lansing


and the Lansing fire department have continued to


accept applications for employment and have
 

continued to hire persons as fire fighters who are


not certified fire fighters and not as well
 

qualified as Plaintiff.
 

***
 

10. Defendant city of Lansing and its fire


department have limited, segregated or classified


plaintiff in a way that tends to deprive him of


employment opportunities in the public fire
 

department of the city of Lansing, or otherwise


adversely affects his status as an applicant


because of his race and sex.
 

***
 

13. Defendant city of Lansing has adopted a


policy of discriminating in employment on the basis
 

26
 
of race, sex and national origin by means of


treating white male applicants for employment less


favorably than applicants who are not white males.
 

14. Defendant city of Lansing has applied its


policy of discriminating in employment on the basis


of race, sex and national origin to the Lansing


fire department.
 

15. Defendant city of Lansing and its fire


department have manipulated facially neutral
 

testing procedures to discriminate on the basis of


race, sex and national origin by means of giving


second, third and fourth chances to members of


favored races, sex or national origin.
 

***
 

18. Defendant city of Lansing obtained
 

approval for a voluntary affirmative action plan in


1987 but has abandoned the approved plan.
 

19. Defendant's affirmative action plan lacks
 

any rational connection with a legitimate


governmental objective for the reason that ten


years of enforcement of the said voluntary


affirmative action plan has had no effect on the


distribution of women and minorities in the nonsupervisory ranks of the Lansing fire department.
 

20. Defendant city of Lansing adopted both its


approved voluntary affirmative action plan, and its


unapproved voluntary affirmative action plan with


intent to discriminate on the basis of race and
 

sex. 


21. The only effect of ten years of voluntary


affirmative action in the Lansing fire department


has been to deprive white males of employment


opportunities in the Lansing fire department. 


22. Plaintiff has sustained damages in the


premises in excess of $10,000.00, in violation of


the form of the Elliott Larsen Civil Rights Act and


Const 1963, art 1, § 2.
 

27
 
Wherefore, Plaintiff prays that this Honorable


Court enter its order enjoining Defendant city of


Lansing from discriminating in employment on the


basis of race, sex or national origin . . . .
 

Plaintiff's pleadings acknowledge the apparent
 

constitutionality of an affirmative action plan that has been
 

approved by the commission and enacted in conformity with
 

§ 210. There is no dispute that the city's plan satisfies both
 

criteria. In his answer to defendant's affirmative defenses,
 

plaintiff stated:
 

Plaintiff affirmatively avers that an
 

affirmative action plan may be adopted and carried


out "if the plan is filed with the commission under


rules of the commission and the commission approves


the plan."
 

As the majority concedes, plaintiff is barred from
 

pursuing a claim under the CRA. By extension, then, he has
 

failed to state a cognizable claim under the Equal Protection
 

Clause of the Michigan Constitution. Simply stated, he has
 

nothing left to pursue on remand.
 

The majority misrepresents my position as asserting that
 

the only way to challenge a state actor's implementation of a
 

law is to challenge the law itself. It interprets this
 

dissent as in conflict with Batson v Kentucky, 476 US 79; 106
 

S Ct 1712; 90 L Ed 2d 69 (1986),27 and Yick Wo v Hopkins, 118
 

27Batson held that the federal Equal Protection Clause


forbids a prosecutor from using peremptory challenges to


remove potential jurors because of race.
 

28
 
US 356; 6 S Ct 1064; 30 L Ed 220 (1886). 28 In so doing, it
 

overlooks a crucial fact that distinguishes Batson and Yick Wo
 

from the instant case: the relationship of the underlying
 

"law" to the conduct alleged in this case is distinguishable
 

from the relationship of those two variables as they operated
 

in Batson and Yick Wo. The key difference is that § 210
 

expressly allows the conduct in which defendant engaged. It
 

permits racial discrimination within certain parameters. The
 

city of Lansing governed itself within those constitutional
 

parameters. Though he tried, Mr. Sharp could not establish a
 

factual issue to the contrary.
 

By contrast, the underlying law in Batson did not
 

expressly allow the conduct in which the Kentucky prosecutor
 

engaged. The "law" in Batson did not permit prosecutors to
 

exercise peremptory challenges on the basis of race. It did
 

not even address race. Thus, the unconstitutional
 

implementation at work in Batson was found in the "deviation"
 

from what the underlying constitutional law would allow. That
 

"law" had been applied to Batson in a way that denied him
 

equal treatment under it. I apply the same standard to Mr.
 

Sharp's claim, but reach a different result because the law in
 

28The Yick Wo Court found an equal protection violation


where an otherwise neutral San Francisco city ordinance was


applied unequally to citizens on the basis of race. 


29
 
 

 

his case operated exactly as legislators intended it should.29
 

There was no deviation from the scheme intended by the
 

Michigan Legislature.
 

However, despite Mr. Sharp's failure to articulate a
 

cognizable claim, another in his position would not
 

necessarily be without a remedy. A complainant could
 

challenge the constitutionality of the CRA generally, or of
 

the safe harbor, testing whether either constitutes a
 

constitutional implementation of art 1, § 2. Sharp chose not
 

to do so. Alternatively, a complainant could challenge the
 

commission's approval of an affirmative action plan, arguing
 

that the plan fails to conform to criteria required by the CRA
 

for approval.30 Again, Sharp chose not to pursue such a claim.
 

29Similarly, in Yick Wo, the law at issue did not
 

expressly authorize discrimination on the basis of race. It


established an approval process for operating certain types of


laundry businesses in San Francisco. The process was used to


deny business opportunities to Chinese immigrants, while


granting them to non-Chinese applicants. The "law" in Yick Wo
 

did not authorize city officials to treat Chinese applicants


differently than others. Rather, it established a neutral


permitting process. City officials applied that law unequally,


thereby violating the equal protection guarantee of the


constitution. Such a fact pattern is easily distinguishable


from the instant case, where an admittedly constitutional


statute prescribes the very discrimination from which
 

plaintiff claims to have suffered.
 

30The concurrence is mistaken in its suggestion that I


agree that the "safe harbor encompasses only affirmative


action plans that are 'adopt[ed] and carr[ied] out . . . to


eliminate present effects of past discriminatory practices or


assure equal opportunity . . . .'" Slip op at 2. The safe


(continued...)
 

30
 
Finally, a complainant could articulate a challenge to a
 

public employer's actions in implementing a plan, by
 

demonstrating that they fell outside the scope authorized by
 

§ 210. He could establish a fact question on such a claim by
 

showing, hypothetically, that the employer hired a minority
 

firefighter despite the fact that the individual had failed a
 

required physical examination. Hiring such a candidate, who
 

would not be qualified even with the benefit of the
 

affirmative action plan, would not fall within the protection
 

of the safe harbor. A complainant could establish a fact
 

question whether the employer used some other unapproved plan,
 

thereby violating complainant's rights. Such acts would not
 

be protected by the safe harbor and the complainant's art 1,
 

§ 2 rights could be vindicated under the CRA. 


Sharp attempted to create a fact question under certain
 

of these theories, but failed. Hence, he is now left with
 

nothing by way of an action arising either under the CRA or
 

directly under art 1, § 2. With no cognizable claims
 

30(...continued)


harbor does not protect only those plans that succeed in


eliminating present effects of past discrimination. Section
 

210 contemplates protection for any properly approved plan


that is reasonably created with the intention of eliminating


discrimination or furthering equal opportunities in the


workplace. The section specifically refers to plans "to"


eliminate effects of discrimination, not plans "that" do in


fact eliminate them. The concurrence's sweeping


interpretation, if accurate, would render the safe-harbor


provision unworkable. 


31
 
remaining that have not already been discharged, his cause was
 

properly dismissed by the Court of Appeals.
 

VII. CONCLUSION
 

I agree with the majority that the safe harbor protects
 

the city of Lansing from an action against it under the CRA.
 

I further acknowledge that the Legislature cannot abrogate
 

constitutional rights through passage of a statute. However,
 

the constitution can delegate authority. The CRA is the
 

Legislature's response to one such constitutional delegation
 

of authority. I believe that art 1, § 2, envisioned that the
 

Legislature would pass an act like the CRA that could be the
 

exclusive remedy for vindicating civil rights claims against
 

public employers in Michigan. I base this conclusion on the
 

expressed intent of certain constitutional convention
 

delegates and by analogy to a persuasive line of federal
 

authority regarding title VII and the federal equal protection
 

clause. The CRA closely resembles title VII that the United
 

States Supreme Court in Brown and Novotny held preempted the
 

field of employment discrimination claims under federal law.
 

Allowing the pursuit of parallel constitutional claims to
 

remedy wrongs cognizable under the CRA is not only illogical,
 

it threatens to undermine and destroy the comprehensive design
 

of the statute. Such a contrary ruling could not reflect the
 

intent of either the Legislature in passing the act or the
 

32
 
people in adopting the Michigan Constitution. 


The majority first misconstrues my position, then finds
 

it "a startling proposition." Slip op at 18. It states my
 

position as being that, if a state actor commits ongoing
 

employment discrimination violative of the state Equal
 

Protection Clause but not violative of the CRA, the courts
 

cannot end the discrimination. My position is that, if a
 

state actor commits employment discrimination by performing
 

acts covered by the CRA, the state Equal Protection Clause
 

cannot be used to end the discrimination.
 

I have demonstrated that this proposition has extensive
 

support in holdings of the United States Supreme Court.
 

Moreover, a contrary holding, the majority's holding, sadly
 

weakens the "noble contributions of the state and federal
 

courts" in fighting discrimination that it purports to esteem.
 

The majority states that my reading of the law allows the
 

Legislature to "trump" the Michigan constitution. It says
 

that "it is axiomatic that the Legislature cannot grant a
 

license to state and local governmental actors to violate the
 

Michigan Constitution." Slip op at 21. However, a close
 

examination reveals that this is mere rhetoric and misses the
 

mark.
 

Without dispute, the constitution can delegate to the
 

Legislature the task of devising a comprehensive statutory
 

33
 
scheme to protect specific constitutional rights. Art 1, § 2
 

contains such a constitutional provision, and it is the one
 

involved in this case. It is also beyond dispute that, when
 

one person's constitutional rights conflict with another's,
 

courts will render a decision whereby one right is sublimated
 

to the other.
 

This dissent, simply stated, stands for the proposition
 

that, when a state actor discriminates against a person in a
 

manner made lawful by the CRA, that person's art 1, § 2 rights
 

are sublimated to the art 1, § 2 constitutional rights of
 

others to have the state actor discriminate in their interest.
 

Art 1, § 2 delegated to the Legislature the power to implement
 

it. In turn, the Legislature authorized the sublimation of
 

one person's equal protection rights over another's when it
 

created § 210.
 

The majority also distorts the meaning of the dissent
 

when it asserts that I would prevent the Court from hearing
 

plaintiff's claim that defendant discriminated against him.
 

It states that the dissent would prevent plaintiff from
 

recovering for defendant's acts that, although not violative
 

of the CRA, violate the Due Process Clause. However, one
 

should note, it neglects to specify the acts. What conduct by
 

defendant does plaintiff claim violated art 1, § 2, but did
 

not violate the CRA? In fact, plaintiff has named no
 

34
 
governmental action by defendant that survived summary
 

disposition, or that should have, and that, also, violated the
 

Due Process Clause.
 

Here, Sharp cannot sue under the CRA because of the bar
 

imposed by § 210. Both the nature of his claim and his
 

pleadings preclude the availability to him of a parallel
 

constitutional claim. The CRA provides his exclusive remedy.
 

Because the Court of Appeals properly dismissed this action,
 

I would affirm.
 

35