___________________________________ __________________________________________________________

____________________________________________________________________________________________________________________________

___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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

1 MCL 37.2101 et seq.the Equal Prot ecti on Clause of the Michigan Constitution 2 . The trial court granted summary disposi tion for the city, finding plaintiff's claims bar red 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 Ri ghts Commissionapproved affirmative actionplan from liability under the CRA for acts undertaken pursuant to that plan. P rincipally 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 f ire fighter 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 s ix c onsecutive years, 1990-1995, he applied for a firefighter position with the city. Each time he was

2 Const 1963, art 1, § 2.

3 It reversed in part, allowing plaintiff to amend his complaint to claim discrimination based on residency. This aspect of the ruling is not in dispute. 2denied employment. He believes tha t the city wrongfully refused to hire him because he is a Caucasian male. The reason for the repeated rejec ti on, according to Sharp, was the city's affirmative action plan. 4 The pl an was formally approved by the Civil Rights C ommi ssion 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 o f § 21 0 precluded all liability. The trial court granted the motion before the close of discovery, relying on MCR2.116(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

4 The det ails 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. 3summary 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 th at 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 majority 6 added, it would not interpret § 210 as providing defendant employer with a shield from liability. Instead, it would have subjected the planitself 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 actionplan 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

5 236 Mich App 452; 600 NW2d 421 (1999). Cole provided that an employer is insulated from liability under the CRA whenever it is insulated under tit le V II, its federal counterpart.

6 The per curiam opinion wa s s igned by Court of Appeals Judges Michael J. Talbot and Jane E. Markey. Judge E. Thomas Fitzgerald concurred in the result only. 4disposition 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 complete ly 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 constitutionand 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 personshall 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 discriminationby private and government employers 7 , while

7 Section 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...) 5creating a damages remedy 8 for those victimized by u nlawful employment acts. Section210 of the CRA invites employers to implement their own affirmative action policies. Under this section, an employer's actio ns t hat 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 p lan 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 acco rdance 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.]

8 Section801(1) provides: "A person alleging a violation of this act may bring a civ il action for appropriate injunctive relief or damages, or both." [MCL 37.2801.] 6harbor 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. Insupport of its motion for summary disp osi tion, defendant presented affidavits showing that its hiring decisions had been made pursuant to anaffirmative action plan approv ed 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 u sed the approved plan in making hiring decisions between 1990 an d 19 95. 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 actionplans. 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 makin g the hiring decisions at issue. Moreover, he ha s n ot established that 7further discovery would uncover support for that assertion. Therefore, we reject his argument that summary disposition entered prematurely with respect to the CRA claim. Ina 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. Plai ntiff 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 e nd 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 act s are subject to review under that constitutional provision. Injunctive and declaratory relief

are available to restrain any acts found to violate the state

8Equal 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. Inthis case, plaintiff sought constitutional relief, alleging that defendant's affirmative action plan violates art 1, § 2. 10 Defe ndant as serts that plaintiff did not vigorously pursue his constitutional theory either at trial or inthe 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 th at pla intiff failed to pursue his constitutional claim sufficiently. Althoughplaintiff's presentation of this issue was somewhat scattered, the record reveals t hat p laintiff did raise the issue at various stages of the litigation. First, he challenged the constitutionality of defendant's plan in his

ownmotion for partial summary disposition, whichwas denied. Next, he raised the issue in his motion for reconsideration of

9 However, money dama ges ar e not available to an aggrieved plaintiff under these circumstances. See Lewis v Michigan , 464 Mich __ ; ___ NW2d ___ (2001).

10 In 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 . . . ."

11 Defendant 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. 9the trial court's decision granting summary disposition to defendant. Finally, he raised it in the Court of Appeals. Indeed, the Court of Appeals its elf 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 througha statutory vehicle in order to seek declaratory or injunctive relief against an alleged violation of the state Eq ual Protection Clause. While the second sentence of art 1, § 2 commits its affirmative “implementation” to the Le gislat ure, 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. 10be denied the equal protection of the laws; nor shall any personbe de nied t he enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, rac e, col or, 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 subst ant ive meaning of the first sentence. Accordingly, while the state ju diciary cannot positively implement art 1, § 2, the judiciary has the legitimate authority, in the exercise of the well-established duty of judicial review, to eva luat e governmental action to determine if it is c onsistent with the equal protection guarantees of the f irst sentence of art 1, § 2 and to invalidate such action i f i t is not. In short, art 1, § 2 commands the Legislature to adopt measures to pr actically implement its equal protection guarantees. This “implementation” language does not mean that state and local governmental entities are free to violate t he su bstantive 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 11indicating that title VII of the federal Civil Rights Act (“title VII”) provides the exclusive remedy for employment discriminationby the federal governmen t. From this, the dissent argues in essence that state statutes should be held to provide the exclusive remedy for employment discrimination claims a gain st 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 relie s 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 feder al e mployment.” Brown, supra at 835. However, as the disse nt acknowledges, the claims in Brownwere all statutory. Post at 9. Thus, at most, Browncan only stand for the proposition that the Civil Rights Act of 1964 provides the exclusive statutory remedy for discriminationinemployment by the federal government because Browndid not involve a constitutional issue. Moreover, Brown stated that even before the extension of title VII in 1972 to

12cover fe dera l employees “an action seeking to enjoin unconstitut ional agen cy conduct would lie . . . .” Id. at 826. Accordingly, consistent with our holding in the present case, Brownaccepted 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 lit ig ants, 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 U SC 1985(3). Essentially, 42 USC 1985(3)

was the modern codification of a Reconstruction Era civil righ ts statute that generally provided a private cause of

13actionagainst 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, inasmuchas Novotny did not involve a governmental defendant, it did not involve any constitutional claim of vi olation of the equa l pr otection guarantees of the United States Constitution. Second, the plaintiff in Novotny was attempting to redress conduct th at 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. Incontrast, 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 ProtectionClause. Thus, Novotny is simply inappo site 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 14of 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 ina 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 pro tected 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 Fi fth Amendment on the basis of sex discrimination in violationof 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

15properly approved under § 210 constitutes unconstitutional employment discrimination in violation of art 1, § 2. In ef fect, a person who may have suffered unconstitut iona l employment discriminatio n un der 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 Co urt has already settled that a cause of action may be implied directly under the equal protection component of the D ue Pro cess 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 cou rse , the type of relief that is directly available for a violation of art 1, § 2 is different from the a ctionfor money damages against the federal gove rnmen t av ailable under Davis. As we have discussed above, thi s 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. Ra ther, a plaintiff may seek injunctive or declaratory relief against the alleged constitutional violation . 16at 243. Thus, Bolling and Davis support a conclusion that injunctive relief is av ailable to end a constitutional vi olationwithout the need for any type of implement in g 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. Smithinvolved claims that a handicapped child

was denied a “free appropriate public education” in violation of, in pertinent part, the fe dera l Education of the Handicapped Act (EHA), 20 USC 1400 et seq ., and the federal Equal Protection Clause. Smith , s upra at 994-995. The pertinent issue in Smithwas 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 conclu ded 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 mak ing any amendments to title VII in 1972. Rathe r, w e 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. 17fees 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 Smithwas actually one of statutory construction or application, not of federal constitutional law. Thus, Smithdoes not support a view that

a statute may preclude injun ctiv e relief to end a constitutional violation. Moreover, the SmithCou rt s tated “ 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 t hat 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 C RA is not available to plaintiff, Smithprovides no 18support for a contentionthat plaintiff may not directly seek injunctive relief under the Michigan Constitution. Indeed, the SmithCourt 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 Smithdid not regard the legislative branch as having the power thr oug h a statute to foreclose the ability of the judicial branchto 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 s tate E qual ProtectionClause is limited to providing injunct ive o r declaratory relief to nullify unconstitutional legislation or ot herw ise stop a recurring violation of the state Equal ProtectionClause. As discussed in Lewis, because of the language of the state Equal Protection Clause, any provision for compensatory relief or similar measures to posit ivel y implement the clause requires legislative action. 19n23. Given that we have already explained why we find the United States Supreme Court decisions on which the dissent relies inapp osite and that federal law can at most be persuasive, not binding, authority inresolving the state law qu estions 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 h as, “I do not claim that the statute is unconstitutional. I only claim the way the statute

was used, or applied, is discr imina tory and, thus,

unco nstitutional action has been engaged in by the state .” In challenging such conduct as nevertheless constituting a violation of art 1, § 2 of the M ichigan Constitution, plaintiff is not asserting a claim that is “parallel” to an alleged violation of the CRA, but rather is seeking to invalidate conduct t hat is allegedly prohibited by the MichiganConstitution 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, 20the 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 langua ge 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 discriminationclaims 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 Constitut ion. In other words, the Legislature cannot so “trump” the Michigan Constitution. Indeed, the ultimate impor t of t he dissent is that, at least in the present context, a party cannot challenge discriminatory acts by a state a ctor i n connection with its applicationor use of a sta tute as constituting unconstitutional discrimination under the state Equal ProtectionClause—at least one cannot do so without also attacking the validity of the underlying statute . This is profoundly misbegotten because the power of judicia l re view does not extend only to invalidating unconstitutional statutes or other legislative enactments, but also to declaring other 21governmental action invalid if it viol ates the state or federal constitution. That judicial review of governmen ta l action for its constitutionality extends to governmental action in connection wi thapplying 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 Protectio n Cl ause forbids a prosecutor from using peremptory chall en ges to

remove potential jurors on the basis of their race. The BatsonCourt did not address whether the underlying provisions of the Kentu cky 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. Infact, the Court o bserved th at it “has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire onracial grounds.” Id. at 88. Likewise, in the present case, the courts may review whether acts underta ken bythe 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

ne ed for plaintiff to challenge § 210 itself as unconstitutional. 22Moreov er, t his is not new law. One need only refer to the venerable, and celebrated, precedent of Yick Wo v Hopkins, 118 US 3 56; 6 S Ct 1064; 30 L Ed 220 (1886), to understand this. Yick Wo involved two p etitioners who were Chinese citizens and who were imprisoned upon convictions for violating a San Francisco ordinance that required a person to obtainthe 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 petition ers an d “200 others who have also petitioned, all of whom happen to be Chinese subjects, [while] 80 others, not Chinese subjects, are p ermi tted 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 distinctionwas due to “hostility to the

r ace and nationality to which the petitioners belong. ” Id . Accordingly, the Court held, without invalidati ng th e San Francisco ordinance, that the discriminationwas violative of the federal Equal Protection Clause and ordered the release of the petitioners. Id. Of particular note inthe present case, the Court in Yick Wo stated: Thoughthe law itself be fair onits face, and impartial in appearance, yet, if it is applied and administered by public authori ty w ith an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons

23insimilar 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 beenfor over a century, that the plaintiff here may challenge the particular “application” of § 210 by defe ndan t in connectionwith 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 pl aint iff’s statutory claim under the Civil Rights Act (an d with it the possibility of recovering money damages or other compen sator y relief) is barred by § 210. Further, pl ain tiff 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

w ith 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 1 88, 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. 24as extending to purely private conduct; these provisions have consistently been interpreted as limited to protectionagainst state action”); Harvey v Aetna Life Ins Co, 72 Mich App 285, 287; 252 NW2d 471 (1976) ( holdin g 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, sucha 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 inthis context. III CONCLUSION We conclude that § 210 bars statutory liability under the CRA for employment discrimination where an empl oyer acts in accordance with an affirmative action plan properly approved 25by the commission. The decisions of the trial court and the Court of Appeals d ism issing 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 Cons tit ution. We hold that the trial court erred by dismissing plaintiff's constitutional claim for injunctive relief. Moreover, plaintiff has preser ved 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. C ORRIGAN , C.J., and C AVANAGH , W EAVER , T AYLOR , and Y OUNG , JJ., concurred.

26S 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 C ivil 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) . Furthermo re, I agree with the

an alysis set forth by the majority in reaching t hi s conclusion.However, I write separately to observe that, in order for

anaffirmative 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 actionplans 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 affirmativ e action pl an, the plan has not been properly approved by the commission. 1 Because plaintiff has not preserved the issue whether the commissioncomplied with the req uir ements 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 bythe CRA for approval,” post at 30, the dissent appare ntl y does not disagree with this proposition. However, the dissent asserts that my “sweeping interpretation, if accurate, would r ende r the safe-harbor provision unworkable.” Post at 31, n 30. I have difficulty understanding why my view is a “sweeping interpretation,” wh en I am merely quoting verbatimthe statutorylanguage, i.e., “[a] person subject to this article mayadopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportu nity .

. . .” MCL 37.2210. I agree with the dissent that the “safe harbor doe s not protect only those plans that succeed in eliminating pre sent effects of past discrimination.” Id . (emphas is a dded). Rather, the safe harbor protects all properly approved plans that are “adopt[ed] and carr[ied] out

. . . to eliminate present effects of past discriminatory pr actices or assure equal opportunity . . .”— but only such plans . 2approved defendant’s affirmative action plan, the majority does not address this issue. This silence , howe ver, should not mislead some to believe that the commissi on p ossesses plenary authority to shield from liability any affirmative actionplan. Rather, the commission is confined, not only by the requirements of the con stitution, but also by the requirements of § 210 itself. To reiterate, under § 210, the commissiononly has the authority to approve, and thus to shield from liability under the Civil Rights Act, affirmative actionplans that are “adopt[ed] and ca rr[ie d] 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 cons titu tionality 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 forthfor 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 beengiven 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 provision 1 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 MichiganConstitution. 3 However, I cannot agree that acts of

anemployer that are protected by the safe harbor are subject

1 MCL 37.2210.

2 MCL 37.2101 et seq.

3 Const 1963, art 1, § 2.to an equal protectionchallenge pursued directly under art 1, § 2. Accordingly, because I believe that our Legislature intended the CRA to provide the ex clusiv e 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 b ound t o 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). Th e starting point for ascertaining the meaning of words used in the constitutionis 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. T HE C ONSTITUTIONAL C ONVENTION OF 1961 The reference to equal protection "of the laws," found in boththe state and federal constitutions, suggests a safeguard against the formation and execution of laws or legislative classificationschemes that operate unequally. It is well settled that the equal protection guarantee is not a source of

2substantive 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 Antoni o 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 protectionclause as a ge neral statement of Michigan's policies and goals with respect to public discrim inati on. 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, o bser ved 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 na tion al 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).]

3To be sure, Delegate Harold Norris, a Democrat, expressed agreement with this basic principle of legislative delegation despite his disagreement with other aspe cts o f the recommendationtendered by Pollock's committee. Professor Norris described the constitution as "a statement of goals and not a detailing of means." Id . a t 742. Don Binkowski, another Democratic delegate on the Pollock committee, characterized the constitution as a guiding doc ument 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 74 6. 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 . . . a nd to provide for legislative implementation of these principles." Id . 4 II. T ITLE VII We have long recognized that federal courts' interpretations of the law under circu msta nces analogous to those before us on review are highly persuasive although not

4 See 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 f or th eir violation, are left to legislative judgment."); Sm ithv Dep't of Public Health , 428 Mich 540, 632; 410 NW2d 749 (1987)(Brickley, J.).

4necessarily 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 n o question that legislative bodies generally possess the power to ena ct d etailed, comprehensive remedial legislationthat preempts parallel claims brought directly under a constitution. The United States Supreme Court expressly recognized this fact in Smith v Robinson 5 , where it observed: In light of the comprehensive nature of the procedures and guarantees set out inthe [Education of the Handicapped Act] and Congress' express efforts t o pla ce 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 undi stur bed 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 sucha result render superfluous most of the detailed procedural protections outlined in the statute, but, more important, it would also r un c ounter to Congress' view that the needs of handicapped childrenare best accommodated by having the parents and the local education agency work together to formulate an individualized plan for eachhandicapped child's education. No federal district court presented with a constitutional claim to a pub li c education can duplicate that process. The SmithC ourt held that the Education of the Handicapped Act (EA) provided the exclusive avenue through

5 468 US 992, 1011-1012; 104 S Ct 3457; 82 L Ed 2d 746 (1984). 5whichthe plaintiffs could assert an equal protect ion 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 bac ked th e Court's earlier holdings that

6 The statute was later amended by Congress to allow statutory and constitutional claims in tandem. Nevertheless, the reasoning of Smithstill 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 Smithfor the propositionthat "[t]he Supreme Court has similarly demonstrated a disinclination to entertain § 1983 actions in whichplaintiffs have bypassed a comprehensive statutory remedy in favor o f a § 1983 claim predicated on an alleged constitutional violation"); Mattoonv City of Pittsfield , 980 F2d 1, 6 (CA 1, 1992)(relying on Smithfor the conclusion that "evenassuming a 'fundamental c onst itutional right' to safe public drinking water, it would not alter th e pr esent 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 Smithis part of a consistent applicationby the Su preme Court of the doctrine that a comprehensive enforcement scheme will preclude parallel constitutional claims). 6Congress intended title VII 7 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 Novotny 9 ; Davis v Passman. 10 Browninvolved 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 Com miss ion, bothof which ruled against him. He then appealed from the commissiondecision to a federal district cou rt. The suit alleged jurisdiction under title VII as amended by the Equal Employment Opportunity Act of 1972, 11 the general federal-questionstatute, 12 the declaratory judgment act 13 and the Civil Rights Act of 1866, as amended. 14 The district court

7 42 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.)

8 425 US 820, 835; 96 S Ct 1961; 48 L Ed 2d 402 (1976).

9 442 US 366; 99 S Ct 2345; 60 L Ed 2d 957 (1979).

10 442 US 228; 99 S Ct 2264; 60 L Ed 2d 846 (1979).

11 42 USC 2000e et seq . 12 28 USC 1331.

13 28 USC 2201-2202.

14 42 USC 1981. 7dismissed the entire action for failure to conform to the procedural requirements of § 717 of the Civil Rights Act of 1964. 15 The Court of App eals aff irmed. Brown v General Services Administration , 507 F2d 1300 (CA 2, 1974). Indeciding the case, the Supreme Court engaged in a detailed review of the legislative history underlyi ng th e 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 wh en 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.

15 42 USC 2000e-16 (title VII), as amended in 1972. 8The 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 dif fere nt label on(the) pleadings." It would require the suspension of disbelief to ascribe to Congress the designto allow its careful and thor ough 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 discriminationin federal employment. [ Brown , 425 US 835.] Though the remedies sought in Brownwere 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 tha t title VII preempts constitutionally based claims as well. Novotny brought an equal protection claim through the vehicle of § 1985(3), 16 and

anactionunder § 704(a), 17 the retaliatory discharge provision of title VII. The Novotny Court relied on the principles set forth in Brownto hold that title VII foreclosed plaintiff's

16 42 USC 1985(3).

17 42 USC 2000e-3(a). 9equal protection claim. It recognized that the availability of parallel constitutional relief, under these circumstances, would dramatically undercut the ef fect iveness of title VII. Comparing Novotny to Brown , the Supreme Court stated: Here, the case is even more compelling. In Brow n , the Court concluded that § 717 displaced other causes of actionarguably available to assert substantive rights similar to those granted by § 717. Section 1985(3), by contrast, c reates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal r ight - - -to equal protection of the laws or equal privileges and immunities under the laws---is bre ache d 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 evenarguably exist bef ore the passage of Title VII. The only questionhere, therefore, is whether the rights cr eated by Title VII may be asserted within th e 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

18 The majority opinion relies on Davis, supra for the propositionthat a constitutional claim can proceed wh ere a plaintiff is not covered by title VII. This is accur ate. However, in analogizing the specific facts of D avis t o this case, the majority overlooks the distinction that the claim at issue in Davis did not fall under the umbrella of title VII. The pla int iff there, by virtue of her status as a congressional employee, was not elig ible 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...) 10restricting the plaintiff to an action under title VII was the only way to pr ese rve 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, whichplays suc h 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 cert ainl y a statute, it "creates no rights," the Novotny Court observes, and is thus activated only"when some otherwise defined federal righ t- -- 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 positionas the plaintiff in Davis . Factually speaking, he more closely resembles the plaintiffs in Brownand Novotny , where the Supreme C ou rt restricted access to alternative parallel remedies. Davis, supra at 247, n 26.

19 Slip op at 13. 11privileges and immunities under the laws- - -is breached by a conspiracy in the manner defined by the sec tion." Novotny , supra at 376. [Emphasis added.] Hence, § 1985 is a remedial vehicle to pursue the vindicationof constitutionally guaranteed rights. The Novotny Court was unequivo cal when it declared that a violationof rights contemplated under title VII could not be

asser ted through a § 1985(3) claim. Id . at 375-376 . I t opined that pursuit of such a remedy would enable a complainant to "avoid most if not all of [the] detailed and spec ific p rovisions of the law." Id . The majority is inaccurate in suggesting that using § 1985(3) to vindicate a violationof a constitutional right is substantively different than suing directly under the constitution. The majority uses it s 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, whenthe S upreme 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

20 See Smith v Robinson , n 6 supra , which lists federal cases that apply Smithin finding a statutory preemption of (continued...) 12credence 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 Cour t ca se that directly addresses th e pr inciple of statutory preemption of parallel constitutional claims. 21 As discussed above, the SmithCourt 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 st atute ." Slip op at 18-19. It thenfinds that Miss Smith's claims were covered by the EA. and that Smithis 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 Unit ed 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.

21 The 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. 13to 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 protectionclaims. Hence, in eachcase a statutory remedy was available to and sought by the plaintiff and th e plai ntiff sought relief, as well, for the same all eged wrongs through a direct constitutional due process claim. Consequently, Smithis pertinent and supports my conclusion that a comprehensive legislative sc heme can preempt certain constitutional claims where the Legislature is authorized and intends to preempt an entire field of law. Inattempting to distinguish the ho ldin g in Smithfrom 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 gra nt the relief necessary to protect against constitutional deprivations or to remedy the wrong done is presumed to be available in cases within t he ir 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 imp leme nts a comprehensive remedial scheme to rectify certain constitutional equal protection rights, the scheme will preempt parallel constitutional claims.

14The footnote is dictum because the SmithCourt found that Congress had implemented such a comprehensive remedial scheme inthe EA. Examined closely, the footnote stands only for the propositionthat, absent a statu toryscheme to remedy equal protectionviolations, 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 inremedying the constitutional deprivations those statutes address. The courts, within jurisdictional limitations, would fill the void in legislation and rig ht wrongs through claims brought directly under the constitution. Yet the fact th at Con gress 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, in clud ing the very preexistent constitutional claims that warranted the legislation. Hence, the holding of Smithis 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

asser tionthat a statute cannot "trump" the constitution,

15federal courts have long acknowledged the opposite principle. 22 Consistent withthe logic working in Smith , these courts have applied Brownand Novotny to hold that title VII preempts constitutional equal protectio n cl aims that fall within the jurisdictionof the statute 23 . See, e.g., Ethnic Employees of the Library of Co ngres s 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

22 As stated i n n 6, numerous federal cases have cited Smithas authority for making the type of ruling that the majority claims cannot be made.

23 Some federal circuits have held that title VII does not necessarily provide the only remedy available for employment discriminationclaims. See, e.g., Beardsley v Webb , 30 F3d 524, 527 (CA 4, 1994). However, many of these decisions dealt withclaims arising from facts beyond the contemplation of title VII, suchthat recognizing them would not encroach upon the area defined by title VII. Eventhose circuits that have interpreted Brown narrowly have not, as the majorit y sug gests, 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. 16was barred by title VII); Purtill v Harris , 658 F2d 134, 137 (CA 3, 1981)(re lying on Brownto 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 fe deral employment); Lawrence v Staa ts , 2 14 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 discrimi nati on was barred by title VII); Richardson v Wiley , 186 U S App DC 309, 310; 569 F 2d 1 40 (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 Burea u of Investigation. The complainants alleged th at including affirmative action principles in the qualifying process fo r spe cial agents violated their Fifth Amendment constituti onal right to equal protection as well as their statutory title VII rights. The court concluded that the

17plaintiffs' 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 onclassification 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 thoroughremedial scheme" Congress ordered for them; th eir access to court is determined by that effective, albeit demanding statute. [ Kizas , at 345-346.] III. T HE CRA Inthe 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) F ail 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. 18Section717 also provide s th e Civil Service Commission withthe power and aut horityto 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 Dep artment, MCL 37.2602. Section602(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 plan s to correct past discriminatory practices which have caused or resulted in a denial of eq ual opportunity with respect to groups or persons protected by this act. Inaddition, § 717(c) outlines a detailed administrative grievance procedure that a complainant must f ollow 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 ina 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 detai ls the various remedies available to the commission f ol lowing a finding of discrimination in violation of the CRA. Finally, § 606 provides the complainant with the right to appeal from 19any final decision of the commission to a circuit court within thirty days. The parallels that exist between title VII and t he CRA

are undeniable. Similarly, the concerns apparent in Brownand Novotny about parallel claims that threaten to d ilut e the comprehensive scheme carefully crafted by Congress also exist he re. Michigan's CRA provides the kind of detailed scheme that the United States Supreme Court recognizes as providing the sole remedy for clai ms arising under its coverage umbrella. IV. L EGISLATIVE I NTENT 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 descriptionof its position in the constellation of antidiscrimination law. Thus, it is appropriate to look for le gislative intent in other, less obvious places. Bro wn , supra at 825. "Where the mind labours to discover the design of the legislature, it seizes everything from which aid can be

20derived . . . ." United States v Fisher , 6 US (2 Cranch) 358, 386 (1805). To begin, the language of th e C RA 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 c ontinu es by describing its own purpose as "to prohibit discrimi nator y practices" and "to provide remedies and penalties . . . ." Id. Thus, on its face, the CRA shows that th e Legi slature envisioned it as comprehensive and detailed. The legislative hist or y, as gathered from House and Senate bill analyses generated before the act's passage in 1976, bears o ut t his suggestion. The legislative documents explainthat 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 c ivi l rights discriminationwithin the Department of Civil Rights, enabling the Department to provide more effective remedies for those w ho ha ve been victimized by unlawful discrimination. [Emphasis added.] The bill analysis further describes the bill as a means of "[outlining] more specifically the legal actiona p erson 21could take if that person feels that he or sh e h as been unfairly discriminated a gainst." (Emphasis added.) The "Argument For:" section of the bill analysis in clud es 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 discriminationenunciated by the U.S. Supreme Court withrespect to equal protection under the Constitution. Hence, the CRA, like its federal counterpart, was intended as a vehicle to de fine and consolidate the various remedial meas ures 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 inharmony with the Michigan Constitution and as an instrument to interpret and enforce its provisions. See, e.g., Thompsonv Bd of Ed Romeo Comm Schs , 519 F Supp 1373, 1380 (WD Mich, 1981) (inter pret ing Michigan law to conclude that the

24 The Equal Protection Clause of Michigan's Constitution is virtually identical to its counterpart contained in the Fourteenth Amendment of the United States Constitution. They a re i nterpreted 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 m eant 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 protectionclaims involving federal governmental employment discrimination, the CRA provides the sole remedy for Michigan governmental employment discrimination. V. A NALOGY A

Michigan complainant like Mr. Sharp is in the same positionas 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

23claim that falls within the purview of the CRA. 25 Allowin g that a parallel and circuitous claim would dilut e the CRA's purpose, just as allowin g Novotny to seek constitutional redress would have diluted the carefully crafted scheme of title VII. Inaddition to the persu asiv eness of federal analogous la w is t he sheer counter intuitiveness of allowing an equal protectionclaim 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

25 The majority intimates that Lewis v Michigan , 464 Mich ___; ___ NW2d ___ (2001), issued withth is 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 dir ectly under the Equal Protection Clause. It does not a ddress 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 tit le 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 disc r iminationremedies that existed before 1972. The 1972 am endmen ts of title VII were aimed at altering the legal foundationfor pursuing federal employment discrimination claims in the public sector. Brown , Novotny, Smith, and each case upon which I rel y, concern the state of employment discrimination law after 1972. 24would be dramati cally weakened. If the safe harbor were destroyed, the C RA would fail in one of its essential purposes: to provide fo r affi rmative action in order to alleviate past instances of discrimination. Inturn, the delegates to the 1961 Constitutio na l Conventionwould 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.

26 To counter the unqualified, direct holding of Brown , the majority relies on a misreading of it. Browndoes not state that the 1972 amendments to ti tle VII left intact the availability of injunctive relief for federal employment discriminationdirectly under the Fifth Amendment. The re i s little question that the BrownCourt 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 discriminationwas even more problematic before 1972.") Injun ctive relief, like the balance of remedies available before 1972, effected nothing to merit celebrati on among opponents of workplace discrimination. According to the BrownCourt, that was the weakness that C ongre ss 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, di spla cing existing legal and equitable claims. I find that our Legislature intended the CRA to have similar preempti ve force. 25VI. S HARP ' S I NADEQUATELY P LEADED C ASE A

more detailed analysis of whether plaintiff has pleaded and preserved any other direct constitutio nal 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 cla ims the adverse party is called on to defend[.] In h is second amended complaint, plaintiff pleaded as follows: 7. Notwithstanding rejection of Plaintiff's applicationfor employment as a fire fighter in the Lansing fire department, Defendant city of Lansing and the Lansing fire departme nt h ave 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 L ansing 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 depar tment 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 26of 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 orig in t o the Lansing fire department. 15. De fenda nt 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, th ird 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 distributionof women and minorities in the nonsupervisory ranks of the Lansing fire department. 20. Defendant city of Lansing adopted bothits approved voluntary affirmative action plan, and its unapproved voluntary affirmative action plan with intent t o di scriminate on the basis of race and sex. 21. The only effect of ten years of voluntary affirmative action in the Lansing fire department has beento de prive white males of employment opportunities in the Lansing fire department. 22. Plaintiff has sustained damages in the premises i n ex cess of $10,000.00, in violation of the form of the Elliott Larsen Civil Rights Act and Const 1963, art 1, § 2.

27Wherefore, Plaintiff prays that this Honorable Court enter its order enjoining Defend ant city of Lansing from discriminating in employment on the basis of race, sex or national origin . . . . Plaintiff's pleadings acknowledge the apparent constitutionality of anaffirmative action plan that has been approved by the commission and enacted in con form ity 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 majori ty concedes, plaintiff is barred from pursuing a clai m under the CRA. By extension, then, he has failed to state a cognizable claim under the Equal Protection C lause of the Michigan Constitution. Simply stated, he ha s 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

27 Batsonheld that the federal E qua l Protection Clause forbids a pr osecutor from using peremptory challenges to remove potential jurors because of race. 28US 356; 6 S Ct 1064; 30 L Ed 220 (1886). 28 In so doi ng, it overlooks a crucial fact that distinguishes Batsonand Yick Wo from the ins tan t 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 consti tuti onal parameters. Though he tried, Mr. Sharp could not establish a factual issue to the contrary. By contrast, the underlying law in Batsondid not expressly allow the conduct in which the Kentucky prosecutor engaged. The "law" in Batsondid not permit prosecutors to exercise peremptory challenges on the basis of race. It did not even addre ss ra ce. Thus, the unconstitutional implementationat work in Batsonwas 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 appl y the same standard to Mr. Sharp's claim, but reach a different result because the law in

28 The Yick Wo Court found an equal protection violation whe re an otherwise neutral San Francisco city ordinance w as applied unequally to citizens on the basis of race. 29his 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 fai lure to articulate a cognizable claim, another in his position would not necessarily be without a remedy. A complainant could ch alle nge 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 complaina nt cou ld 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.

29 Similarly, in Yick Wo, the law at issu e d id not expressly authorize discrimina tion 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, th ereby violating the equal protection guarantee of the constitution. Such a fact pattern is easily distinguis habl e from the instant case, wher e an admittedly constitutional statute prescribes the very discrimination from which plaintiff claims to have suffered.

30 The concurrence is mis taken in its suggestion that I agree that t he "safe harbor encompasses only affirmative actionplans that are 'adopt[ed] and carr[ied] out . . . to eliminate present effects of past discriminatory practices or assur e e qual opportunity . . . .'" Slip op at 2. The safe (continued...) 30Finally, 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, hypotheti call y, 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 questionwhether 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 faile d. Hence, he is now left with nothing by way of an action arising either unde r the CRA or directly under art 1, § 2. With no cognizable claims

30 (...continued) h arbor does not protect only those plans that succ eed i n 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 work pl ace. The section specifically refers to plans "to" elimin ate 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. 31remaining that have not already been discharged, his cause was properly dismissed by the Court of Appeals. VII. C ONCLUSION 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. Th e 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 analo gy 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

32people in adopting the Michigan Constitution. The majority first misconstrues my position, then finds it "a startling proposition." Slip op at 18. It states my positionas being that, if a state actor commits ongoing employment discrimination violative of the state Equal Pr otectionClause 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 Pro tec tion 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 c ontr ary 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 MichiganConstitution." Slip op at 21. However, a close examinationreveals 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

33scheme 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 L egislature authorized the sublimation of

one p erso n's equal protection rights over another's when it created § 210. The majority also distorts the meaning of the dissent whenit asserts that I would prevent the Court from hearing plaintiff's claim that defendant discriminated against him. It states that the diss ent 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

34governmental 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