DAVID SHARP V CITY OF LANSING
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
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 Protection Clause of the Michigan Constitution2.
The trial court granted summary disposition for the city,
finding
plaintiff's
claims
provision of MCL 37.2210.
dismissal.3
barred
by
the
"safe
harbor"
The Court of Appeals upheld the
238 Mich App 515; 606 NW2d 424 (1999).
It is beyond question that the safe harbor of the CRA
shields a public employer with a Civil Rights Commission
approved affirmative action plan from liability under the CRA
for acts undertaken pursuant to that plan.
Principally at
issue is whether the safe harbor provision also shields such
an employer from constitutional equal protection challenges.
We hold that it does not.
We affirm in part the decision of
the Court of Appeals, reverse it in part, and remand the case
to the trial court.
I
BACKGROUND
Plaintiff wanted to be a firefighter with the city of
Lansing Fire Department. He believed himself qualified, since
he was a certified firefighter and the fire chief in Onondaga
Township.
For six consecutive years, 1990-1995, he applied
for a firefighter position with the city. Each time he was
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.
2
denied
employment.
He
believes
that
the
city
wrongfully
refused to hire him because he is a Caucasian male.
The reason for the repeated rejection, according to
Sharp, was the city's affirmative action plan.4 The plan was
formally approved by the Civil Rights Commission in April
1987, pursuant to § 210 of the CRA.
That provision generally
encourages employers to implement voluntary affirmative action
plans and sets forth a procedure for doing so.
Plaintiff sued the city, seeking damages, an injunction
barring further use of the affirmative action plan, and a
position with the city fire department. He argued that § 210
did not bar his claim and that the city's plan operated
unconstitutionally with respect to him. Defendant disagreed
and moved for summary disposition on the ground that the safe
harbor of § 210 precluded all liability. The trial court
granted the motion before the close of discovery, relying on
MCR 2.116(C)(8), (10). It concluded that the CRA provided the
exclusive remedy for discrimination claims in the state and,
therefore, such a claim was barred in this instance.
The Court of Appeals affirmed the trial court's grant of
4
The details of the plan itself are not central to the
questions presented in this case. The stated goal of the plan
was to increase the percentage of minorities and women in the
fire department, which was composed predominantly of white
males. In the interest of achieving its goal, the city made
race and gender factors in hiring decisions.
3
summary disposition, relying on Cole v General Motors Corp.5
The panel believed that it was bound by the precedent of Cole;
but disagreed with the reasoning employed there. It stated:
Because plaintiff does not challenge the
constitutionality of the Civil Rights Act itself,
but only the validity of defendant's affirmative
action plan and the actions of defendant employer,
we believe that the ruling in Cole effectively
resolves plaintiff's claim in this case. Were it
not for the Cole decision, however, we would reach
a different result. [238 Mich App 519.]
If working from "a clean slate," the Court of Appeals
majority6 added, it would not interpret § 210 as providing
defendant employer with a shield from liability.
Instead, it
would have subjected the plan itself to constitutional review
and would have held that § 210 does not "automatically" confer
immunity from statutory liability under the CRA.
We granted
plaintiff's application for leave to appeal.
Plaintiff argues that the city's affirmative action plan
should not have been approved.
He asserts that the plan
delegates too much authority to the city by allowing the city
to
make
changes
to
it
without
commission
approval.
He
contends, also, that the trial court erred by granting summary
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 title VII, its federal
counterpart.
6
The per curiam opinion was signed by Court of Appeals
Judges Michael J. Talbot and Jane E. Markey. Judge E. Thomas
Fitzgerald concurred in the result only.
4
disposition before discovery ended.
A genuine issue of fact
exists, he argues, about whether the plan ever received
approval from the commission.
lower
court's
decision
that
Finally, he challenges the
§
210
completely
immunizes
defendant's actions taken in accordance with its approved
affirmative action plan.
II
ANALYSIS
This case involves the interplay of the Equal Protection
Clause of our constitution and the statutory framework of the
CRA.
Art 1, § 2 guarantees Michigan citizens the right to be
free from racial discrimination in employment by state actors.
That clause provides:
No person shall be denied the equal protection
of the laws; nor shall any person be denied the
enjoyment of his civil or political rights or be
discriminated against in the exercise thereof
because of religion, race, color or national
origin. The legislature shall implement this
section by appropriate legislation.
The CRA extended these protections to employment in the
private
sector.
Thus,
it
prohibits
racial
employment
discrimination by private and government employers7, while
7
Section 202 provides in pertinent part:
(1) An
following:
employer
shall
not
do
any
of
the
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
(continued...)
5
creating a damages remedy8 for those victimized by unlawful
employment acts.
Section 210 of the CRA invites employers to implement
their own affirmative action policies. Under this section, an
employer's actions that would otherwise violate the CRA are
permissible,
provided
they
are
taken
pursuant
to
an
affirmative action plan properly approved by the commission.
Section 210 provides:
A person subject to this article may adopt and
carry out a plan to eliminate present effects of
past discriminatory practices or assure equal
opportunity with respect to religion, race, color,
national origin, or sex if the plan is filed with
the commission under rules of the commission and
the commission approves the plan.
We presume that the Legislature intended the unequivocal
meaning expressed in § 210. See Nation v WDE Electric Co, 454
Mich 489, 494; 563 NW2d 233 (1997). It provides a safe harbor
for public and private employers who act in accordance with
properly approved affirmative action plans. However, the safe
7
(...continued)
individual
with
respect
to
employment,
compensation, or a term, condition, or privilege of
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status. [MCL 37.2202.]
8
Section 801(1) provides: "A person alleging a violation
of this act may bring a civil action for appropriate
injunctive relief or damages, or both." [MCL 37.2801.]
6
harbor does not shield against all claims. It merely protects
employers from liability under the CRA for doing precisely
what the statute itself invites them to do.
In
support
defendant
of
presented
its
motion
affidavits
for
summary
showing
disposition,
that
its
hiring
decisions had been made pursuant to an affirmative action plan
approved by the Civil Rights Commission in 1987.
Plaintiff
does not dispute that the commission approved defendant’s 1987
plan. Rather, he argues that a genuine issue of material fact
exists whether defendant actually used the approved plan in
making hiring decisions between 1990 and 1995.
Plaintiff
contends that defendant followed different and unapproved
plans when making the hiring decisions at issue. Moreover, he
asserts, the commission "exceeded its authority" by giving to
defendant the discretion periodically to adjust its hiring
goals without commission approval.
The essence of plaintiff's position is that defendant's
periodic revision of its hiring goals after 1987 resulted in
the establishment of new affirmative action plans.
He argues
that these plans should have been submitted for commission
approval.
However, plaintiff has offered no factual support
for his assertions.
Accordingly, he has failed to create a
genuine issue of material fact whether defendant relied on a
series of separate, unapproved plans in making the hiring
decisions at issue.
Moreover, he has not established that
7
further discovery would uncover support for that assertion.
Therefore, we reject his argument that summary disposition
entered prematurely with respect to the CRA claim.
In a related vein, plaintiff suggests that the commission
erred in failing to make findings of fact and conclusions of
law when it approved defendant's affirmative action plan.
Plaintiff did preserve the issue whether the commission was
required under the Administrative Procedures Act, MCL 24.285,
to make findings of fact and conclusions of law. However, for
the reasons set forth in the Court of Appeals decision, MCL
24.285 is not applicable to this case.
238 Mich App 521.
Accordingly, plaintiff has not preserved the issue whether the
commission was required under § 210 to make findings of fact
and conclusions of law.
Thus, we conclude that the safe
harbor provision bars plaintiff's statutory claims against the
city.
But our inquiry does not end there.
involved.
A state actor is
Consequently, the protections provided directly by
the state Equal Protection Clause come into play.
When an
aggrieved plaintiff alleges that a public employer denied his
equal protection rights in violation of art 1, § 2, the
employer's
acts
are
subject
to
review
under
that
constitutional provision. Injunctive and declaratory relief
are available to restrain any acts found to violate the state
8
Equal Protection Clause.9
Hence, the mere existence of an
approved affirmative action plan does not insulate a state
employer, or its plan, from all judicial scrutiny.
In this case, plaintiff sought constitutional relief,
alleging that defendant's affirmative action plan violates
art 1, § 2.10
Defendant asserts that plaintiff did not
vigorously pursue his constitutional theory either at trial or
in the Court of Appeals.
It argues that such a lack of
pursuit constitutes an abandonment of the claim, regardless of
how it was pleaded.11 We disagree that plaintiff failed to
pursue his constitutional claim sufficiently.
Although
plaintiff's
presentation
of
this
issue
was
somewhat scattered, the record reveals that plaintiff did
raise the issue at various stages of the litigation.
First,
he challenged the constitutionality of defendant's plan in his
own motion for partial summary disposition, which was denied.
Next, he raised the issue in his motion for reconsideration of
9
However, money damages are not available to an
aggrieved plaintiff under these circumstances. See Lewis v
Michigan, 464 Mich __ ; ___ NW2d ___ (2001).
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 stand
alone claim for constitutional relief.
9
the trial court's decision granting summary disposition to
defendant.
Finally, he raised it in the Court of Appeals.
Indeed, the Court of Appeals itself acknowledged the issue.
The problem with the analyses of both the trial court and the
Court of Appeals is that the lower courts apparently assumed
that
§
210
alone
resolved
plaintiff’s
constitutional
challenge.
Hence, we find that plaintiff pleaded and pursued his
constitutional
theory
sufficiently
to
provide
notice
to
defendant of the claims against which it would have to defend.
Having preserved the issue, plaintiff is entitled to be heard
on his claim for injunctive relief.
The dissent’s conclusion that plaintiff’s constitutional
challenge is barred fails to appreciate that the safe harbor
provided by § 210 necessarily extends only to statutory claims
under
the
CRA.
There
is
simply
no
requirement
that
a
plaintiff proceed through a statutory vehicle in order to seek
declaratory or injunctive relief against an alleged violation
of the state Equal Protection Clause.
While the second
sentence
its
of
art
1,
§
2
commits
affirmative
“implementation” to the Legislature,12 the first sentence of
this constitutional provision commands that “[n]o person shall
12
For this reason, we hold today in Lewis, supra, that
we do not have authority to grant money damages or other
compensatory relief for past violations of art 1, § 2.
10
be denied the equal protection of the laws; nor shall any
person be denied the enjoyment of his civil or political
rights or be discriminated against in the exercise thereof
because of religion, race, color, or national origin.”
The
duty imposed on the Legislature by the second sentence of
art 1, § 2 to implement art 1, § 2 is not a power to
ultimately
define
the
substantive
sentence.
Accordingly, while the state judiciary cannot
positively
implement
art
1,
§
2,
meaning
the
of
the
judiciary
first
has
the
legitimate authority, in the exercise of the well-established
duty of judicial review, to evaluate governmental action to
determine if it is consistent with the equal protection
guarantees of the first sentence of art 1, § 2 and to
invalidate such action if it is not.
In short, art 1, § 2
commands the Legislature to adopt measures to practically
implement
its
equal
protection
guarantees.
This
“implementation” language does not mean that state and local
governmental entities are free to violate the substantive
equal protection guarantees of art 1, § 2 merely because the
Legislature
has
failed
to
address
a
particular
type
of
violation.
Our dissenting colleague relies heavily on an analogy to
federal
law,
particularly
United
States
Supreme
Court
decisions related to employment discrimination claims against
the federal government. The dissent portrays this case law as
11
indicating that title VII of the federal Civil Rights Act
(“title VII”) provides the exclusive remedy for employment
discrimination by the federal government.
From this, the
dissent argues in essence that state statutes should be held
to provide the exclusive remedy for employment discrimination
claims against state or local government actors under state
law.
As the dissent forthrightly acknowledges, this federal
case
law
can
only
be
persuasive
authority,
not
binding
precedent, in resolving the present case, which involves only
questions of state law.
We consider the dissent’s attempted
analogy to federal law to be unpersuasive.
The dissent analogizes the present case to Brown v
General Services Administration, 425 US 820; 96 S Ct 1961; 48
L Ed 2d 402 (1976).
In particular, our dissenting colleague
relies on language in Brown “that § 717 of the Civil Rights
Act of 1964, as amended, provides the exclusive judicial
remedy for claims of discrimination in federal employment.”
Brown, supra at 835.
However, as the dissent acknowledges,
the claims in Brown were all statutory.
Post at 9.
Thus, at
most, Brown can only stand for the proposition that the Civil
Rights Act of 1964 provides the exclusive statutory remedy for
discrimination in employment by the federal government because
Brown did not involve a constitutional issue. Moreover, Brown
stated that even before the extension of title VII in 1972 to
12
cover
to
enjoin
unconstitutional agency conduct would lie . . . .”
Id. at
826.
federal
employees
“an
action
seeking
Accordingly, consistent with our holding in the present
case, Brown accepted as an established principle that a party
could
seek
injunctive
relief
against
unconstitutional
governmental action.
The dissent also contends that, in Great American Savings
& Loan Ass’n v Novotny, 442 US 366; 99 S Ct 2345; 60 L Ed 2d
957 (1979), the United States Supreme Court “made clear that
Brown’s reasoning extended to encompass the notion that title
VII preempts constitutionally based claims as well.”
9.
Post at
We disagree because Novotny, a case with only private
parties as litigants, did not involve any constitutional
claim.
In
Novotny,
the
male
plaintiff
alleged
that
he
suffered unlawful employment discrimination because he opposed
his
former
employer’s
practice
of
discriminating
against
female employees on the basis of sex in violation of the
“anti-retaliation”
provision
of
title
VII
prohibiting
an
employer from discriminating against an employee for opposing
a violation of title VII. In pertinent part, the plaintiff in
Novotny attempted to bring suit against that employer and its
directors under 42 USC 1985(3). Essentially, 42 USC 1985(3)
was the modern codification of a Reconstruction Era civil
rights statute that generally provided a private cause of
13
action
against
certain
protected rights.
conspiracies
to
violate
federally
The Novotny Court noted its concern that,
if a violation of title VII could be asserted through this
other statute, many of the provisions of title VII would be
avoided.
Accordingly, the Novotny Court declined to allow
such a cause of action.
We consider the dissent’s effort to analogize the present
case to Novotny unpersuasive for two critical reasons. First,
inasmuch as Novotny did not involve a governmental defendant,
it did not involve any constitutional claim of violation of
the
equal
protection
guarantees
of
the
United
States
Constitution. Second, the plaintiff in Novotny was attempting
to redress conduct that was prohibited by title VII through
another, more generalized, federal statute, and his claim that
title VII was violated was an essential aspect of his claim.
In contrast, while the present plaintiff cannot proceed under
the CRA because of the safe harbor provided by § 210, that
does not mean that he cannot claim that the conduct at issue
by the city of Lansing is violative of the state Equal
Protection Clause.
Thus, Novotny is simply inapposite to
whether injunctive relief is available against governmental
action that is unconstitutional if it is claimed that action
violates the constitutional equal protection guarantees.
The dissent further cites Davis v Passman, 442 US 228; 99
S Ct 2264; 60 L Ed 2d 846 (1979), in support of its discussion
14
of plaintiff’s constitutional claim.
Post at 7.
However, we
believe that Davis actually supports our analysis.
In Davis,
a female employee of a member of congress was informed by him
in a letter that she was removed from her position because he
concluded that it was “essential” that the position be held by
a
man.
At
petitioner
that
in
time,
Davis
congressional
were
not
employees
protected
from
like
the
employment
discrimination under title VII of the Civil Rights Act.
See
id. at 247 (“[w]hen § 717 was added to title VII to protect
federal employees from discrimination, it failed to extend
this protection to congressional employees such as petitioner
who are not in the competitive service”).
The United States
Supreme Court held that the plaintiff in Passman could bring
a cause of action directly under the Due Process Clause of the
Fifth
Amendment
on
the
basis
of
sex
discrimination
violation of its equal protection component.
in
Id. at 242-244.
Properly understood then, Davis supports our treatment of
the constitutional claim in the present case.
in
Davis
was
unable
to
seek
relief
under
The plaintiff
the
generally
applicable federal statute against employment discrimination
because, as a congressional employee, she was not covered by
that statute.
Similarly, because of § 210, the state CRA
provides no recourse for a person who alleges that conduct by
a governmental employer pursuant to an affirmative action plan
15
properly approved under § 210 constitutes unconstitutional
employment discrimination in violation of art 1, § 2.
effect,
a
person
who
may
have
suffered
In
unconstitutional
employment discrimination under such a plan, assuming it is
adopted
and
approved,
is
not
covered
by
the
CRA.
Nevertheless, as in Davis, such a person is able to directly
challenge the alleged constitutional violation.13
Indeed, the
Davis Court expressly stated that “this Court has already
settled that a cause of action may be implied directly under
the equal protection component of the Due Process Clause of
the Fifth Amendment in favor of those who seek to enforce this
constitutional right.”
Davis, supra at 242.
In support of
this principle, the Court referred to Bolling v Sharpe, 347 US
497; 74 S Ct 693; 98 L Ed 884 (1954), in which the Court held
that
“equitable
relief”
was
available
to
plaintiffs
challenging racial segregation in the District of Columbia
schools as violative of the Fifth Amendment. See Davis, supra
at 242-243.
As the Davis Court noted, the action in Bolling
was predicated directly on the Fifth Amendment.
13
Davis, supra
Of course, the type of relief that is directly
available for a violation of art 1, § 2 is different from the
action for money damages against the federal government
available under Davis.
As we have discussed above, this
Court’s holding today in Lewis, supra, makes clear that there
is no cause of action for money damages arising directly under
art 1, § 2.
Rather, a plaintiff may seek injunctive or
declaratory relief against the alleged constitutional
violation.
16
at 243.
Thus, Bolling and Davis support a conclusion that
injunctive
relief
is
available
to
end
a
constitutional
violation without the need for any type of implementing
statute.14
The United States Supreme Court decision in Smith v
Robinson, 468 US 992; 104 S Ct 3457; 82 L Ed 2d 746 (1984),
also fails to support Justice Kelly’s view that plaintiff may
not
directly
Constitution.
seek
injunctive
relief
under
the
Michigan
Smith involved claims that a handicapped child
was denied a “free appropriate public education” in violation
of,
in
pertinent
part,
the
federal
Education
of
the
Handicapped Act (EHA), 20 USC 1400 et seq., and the federal
Equal Protection Clause.
Smith, supra at 994-995.
The
pertinent issue in Smith was whether the petitioners could
recover attorney fees under 42 USC 1988, which generally
allowed such a recovery in favor of plaintiffs seeking to
enforce federal constitutional rights when the specifically
applicable EHA, as then in effect, made no provision for
awarding attorney fees.
The Court concluded that attorney
14
The dissent misapprehends our consideration of Bolling
in stating that our use of that case “to predict the effects
of a legislative act in 1972 evidences a remarkable twist of
the laws of time and space.” Post at 24, n 25. We do not in
any way rely on Bolling as indicating the intent of Congress
in making any amendments to title VII in 1972. Rather, we
rely on Bolling as indicating that a court may directly grant
injunctive relief against a constitutional violation without
regard to the content of any statute.
17
fees could not be awarded under 42 USC 1988, because Congress
“intended the EHA to be the exclusive avenue through which a
plaintiff may assert an equal protection claim to a publicly
financed
special
education.”
Smith,
supra
at
1009.
Accordingly, the issue involved in Smith was actually one of
statutory
construction
constitutional law.
a
statute
may
or
application,
not
of
federal
Thus, Smith does not support a view that
preclude
injunctive
relief
to
end
a
constitutional violation.
Moreover, the Smith Court stated “where the EHA is
available to a handicapped child asserting a right to a free
appropriate public education, based either on the EHA or on
the Equal Protection Clause of the Fourteenth Amendment, the
EHA is the exclusive avenue through which the child and his
parents or guardian can pursue their claim.”
1013 (emphasis added).
Smith, supra at
At the very most, this can only
reasonably be taken to support the view that, if a statutory
remedy is available for an alleged constitutional violation,
a party may be required to seek to a remedy that alleged
constitutional violation through the procedures provided by
the statute.
However, as we have discussed above, plaintiff
cannot challenge the alleged unconstitutional discrimination
by defendant in this case under the CRA because of the
immunity provided by § 210 of the CRA.
Accordingly, because
the CRA is not available to plaintiff, Smith provides no
18
support for a contention that plaintiff may not directly seek
injunctive relief under the Michigan Constitution.
Indeed, the Smith Court expressly stated:
There is no issue here of Congress’ ability to
preclude the federal courts from granting a remedy
for a constitutional deprivation. Even if Congress
repealed all statutory remedies for constitutional
violations, the power of federal courts to grant
the
relief
necessary
to
protect
against
constitutional deprivations or to remedy the wrong
done is presumed to be available in cases within
their jurisdiction. [Smith, supra at 1012, n 15.]
This language makes clear that the United States Supreme Court
in Smith did not regard the legislative branch as having the
power through a statute to foreclose the ability of the
judicial branch to order an end to constitutional violations.15
Our dissenting colleague also attempts to analogize the
present
case
to
a
large
number
of
lower
federal
court
decisions, see post at 16-17, in support of her position with
regard to plaintiff’s constitutional claim, while forthrightly
acknowledging that “[s]ome federal circuits have held that
title
VII
does
not
necessarily
provide
the
available for employment discrimination claims.”
15
only
remedy
Post at 16,
Consistent with our holding today in Lewis, supra, we
reiterate that judicial authority under the state Equal
Protection Clause is limited to providing injunctive or
declaratory relief to nullify unconstitutional legislation or
otherwise stop a recurring violation of the state Equal
Protection Clause.
As discussed in Lewis, because of the
language of the state Equal Protection Clause, any provision
for compensatory relief or similar measures to positively
implement the clause requires legislative action.
19
n 23.
Given that we have already explained why we find the
United States Supreme Court decisions on which the dissent
relies
inapposite
and
that
federal
law
can
at
most
be
persuasive, not binding, authority in resolving the state law
questions involved in the present case, we will not burden
readers of this opinion with a further discussion of case law
from the lower federal courts.
We note that the dissent indicates that it would not
allow plaintiff to pursue “parallel constitutional claims to
remedy wrongs cognizable under the CRA,” post at 28, which, in
plain language, means that a discrimination plaintiff cannot
say, as this one effectively has, “I do not claim that the
statute is unconstitutional. I only claim the way the statute
was
used,
or
applied,
is
discriminatory
and,
thus,
unconstitutional action has been engaged in by the state.”
In challenging such conduct as nevertheless constituting a
violation
of
art
1,
§
2
of
the
Michigan
Constitution,
plaintiff is not asserting a claim that is “parallel” to an
alleged
violation
invalidate
conduct
of
the
that
CRA,
is
but
rather
allegedly
is
seeking
prohibited
by
to
the
Michigan Constitution even though it does not violate the act.
Said plainly, the unsettling position of the dissent is that,
if the state actor (i.e., the city of Lansing in this case),
commits ongoing employment discrimination that violates the
state Equal Protection Clause, without also violating the CRA,
20
the courts, when petitioned by the employee, have no ability
to put an end to the unconstitutional discrimination.
In an
era in which one of the noble contributions of the state and
federal
courts
has
been
to
give
citizens
aid
against
discrimination, this is a startling proposition.
Our
dissenting
colleague
also
indicates
that
“the
language of the [CRA], case law, and the legislative record
persuasively support the proposition that our Legislature
intended the [act] to be the sole remedy for state employment
discrimination claims in Michigan.”
Post at 20.
While the
accuracy of this assertion may well be debatable, it is also
irrelevant because it is axiomatic that the Legislature cannot
grant a license to state and local governmental actors to
violate the Michigan Constitution.
In other words, the
Legislature cannot so “trump” the Michigan Constitution.
Indeed, the ultimate import of the dissent is that, at
least
in
the
present
context,
a
party
cannot
challenge
discriminatory acts by a state actor in connection with its
application
or
unconstitutional
use
of
a
discrimination
statute
as
under
the
constituting
state
Equal
Protection Clause—at least one cannot do so without also
attacking the validity of the underlying statute.
This is
profoundly misbegotten because the power of judicial review
does not extend only to invalidating unconstitutional statutes
or other legislative enactments, but also to declaring other
21
governmental action invalid if it violates the state or
federal constitution.
That judicial review of governmental action for its
constitutionality extends to governmental action in connection
with applying a statute, without requiring a review of the
underlying statute itself, is reflected in both modern and
historic United States Supreme Court precedent.
In Batson v
Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986),
the Court held that the federal Equal Protection Clause
forbids a prosecutor from using peremptory challenges to
remove potential jurors on the basis of their race.
The
Batson Court did not address whether the underlying provisions
of the Kentucky Rules of Criminal Procedure that allow a
prosecutor to use peremptory challenges, see id. at 83, n 2,
were unconstitutional, or in any way suggest that they were.
In fact, the Court observed that it “has found a denial of
equal protection where the procedures implementing a neutral
statute operated to exclude persons from the venire on racial
grounds.”
Id. at 88.
Likewise, in the present case, the
courts may review whether acts undertaken by the city of
Lansing pursuant to its affirmative action plan, which was
approved by the Civil Rights Commission under § 210, are
violative of the state Equal Protection Clause without any
need
for
plaintiff
to
challenge
unconstitutional.
22
§
210
itself
as
Moreover, this is not new law.
One need only refer to
the venerable, and celebrated, precedent of Yick Wo v Hopkins,
118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886), to understand
this.
Yick Wo involved two petitioners who were Chinese
citizens
and
who
were
imprisoned
upon
convictions
for
violating a San Francisco ordinance that required a person to
obtain the consent of the local board of supervisors to run a
laundry business in a location other than a brick or stone
building.
Such consent was denied the petitioners and “200
others who have also petitioned, all of whom happen to be
Chinese subjects, [while] 80 others, not Chinese subjects, are
permitted
to
carry
conditions.”
discrimination,
Id.
on
at
the
the
same
374.
In
Court
business
light
considered
of
under
similar
this
obvious
the
conclusion
irresistible that the distinction was due to “hostility to the
race and nationality to which the petitioners belong.”
Id.
Accordingly, the Court held, without invalidating the San
Francisco ordinance, that the discrimination was violative of
the federal Equal Protection Clause and ordered the release of
the petitioners. Id. Of particular note in the present case,
the Court in Yick Wo stated:
Though the law itself be fair on its face, and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye
and an unequal hand, so as practically to make
unjust and illegal discrimination between persons
23
in similar circumstances, material to their rights,
the denial of equal justice is still within the
prohibition of the constitution. [Id. at 373-374.]
Consistent with this recognition, it is axiomatic, and has
been for over a century, that the plaintiff here may challenge
the
particular
connection
without
“application”
with
defendant’s
asserting
(or
of
§
210
by
affirmative
considering)
defendant
action
whether
§
in
policies
210
is
constitutional.
We note that our decision in this case certainly does not
deny substantial practical effect to § 210 of the CRA.16
Indeed, we have held that plaintiff’s statutory claim under
the
Civil
Rights
Act
(and
with
it
the
possibility
of
recovering money damages or other compensatory relief) is
barred by § 210.
Further, plaintiff is able to bring a
constitutional claim under art 1, § 2 because the present
defendant, as a governmental entity, is directly bound to obey
the
equal
provision.
protection
guarantees
of
this
constitutional
At least generally, that would not be the case
with regard to a private employer that uses an affirmative
action plan properly approved by the Civil Rights Commission
under § 210. See Woodland v Michigan Citizens Lobby, 423 Mich
188, 205; 378 NW2d 337 (1985) (“The Michigan Constitution’s
Declaration of Rights provisions have never been interpreted
16
We note that the present case does not involve a
challenge to the constitutionality of § 210.
24
as extending to purely private conduct; these provisions have
consistently been interpreted as limited to protection against
state action”); Harvey v Aetna Life Ins Co, 72 Mich App 285,
287; 252 NW2d 471 (1976) (holding that the Equal Protection
Clause applies “to actions of the state and not to private
conduct”).
Obviously, nothing in this opinion would prevent
such a private employer from relying on § 210 as a bar to an
employment discrimination claim under the CRA.
Ultimately, the dissent would create a special rule for
claims of employment discrimination in violation of art 1, §
2 (or at least for such claims in the affirmative action
context) that would preclude a plaintiff from directly seeking
injunctive or declaratory relief against governmental action
as being violative of this constitutional provision.
Rather,
such a plaintiff would, if the dissent’s view were to prevail,
either have to first establish a statutory violation or argue
that a state statute is unconstitutional in order to directly
challenge the alleged constitutional violation.
We see no
appropriate basis for imposing such a heightened duty in this
context.
III
CONCLUSION
We conclude that § 210 bars statutory liability under the
CRA for employment discrimination where an employer acts in
accordance with an affirmative action plan properly approved
25
by the commission.
The decisions of the trial court and the
Court
dismissing
of
Appeals
plaintiff's
CRA
claims
are
affirmed.
The existence of the safe harbor does not abrogate rights
guaranteed under the Equal Protection Clause of the Michigan
Constitution.
We
hold
that
the
trial
court
erred
by
dismissing plaintiff's constitutional claim for injunctive
relief.
Moreover, plaintiff has preserved this claim for
appellate review. Therefore, the Court of Appeals decision on
the constitutional claim is reversed and the case is remanded
to the trial court for consideration of plaintiff's prayer for
injunctive relief under art 1, § 2.
CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , and YOUNG , JJ.,
concurred.
26
S T A T E
O F
M I C H I G A N
SUPREME COURT
DAVID SHARP,
Plaintiff-Appellant,
v
No.
116171
CITY OF LANSING,
Defendant-Appellee.
MARKMAN, J. (concurring).
I concur in the result reached by the majority because I
agree that § 210 shields a public employer with an affirmative
action plan properly approved by the Civil Rights Commission
from liability under the Michigan Civil Rights Act, MCL
37.2101 et seq., but not necessarily from liability under the
Equal Protection Clause of the Michigan Constitution, Const
1963, art 1, § 2.
;
analysis
Cf., however, Lewis v Michigan, 464 Mich
NW2d
set
conclusion.
(2001).
forth
by
the
Furthermore, I agree with the
majority
in
reaching
this
However, I write separately to observe that, in order for
an affirmative action plan to be properly approved by the
Civil
Rights
Commission,
it
must
requirements set forth in § 210.
comply
fully
with
the
Section 210's safe harbor
encompasses only affirmative action plans that are “adopt[ed]
and carr[ied] out . . . to eliminate present effects of past
discriminatory practices or assure equal opportunity . . . .”
MCL 37.2210.
Therefore, where the commission fails to apply
these standards in its examination of an affirmative action
plan,
the
plan
has
not
been
properly
approved
by
the
commission.1
Because plaintiff has not preserved the issue whether the
commission complied with the requirements of § 210 when it
1
In observing that “a complainant could challenge the
commission’s approval of an affirmative action plan, arguing
that the plan fails to conform to criteria required by the CRA
for approval,” post at 30, the dissent apparently does not
disagree with this proposition. However, the dissent asserts
that my “sweeping interpretation, if accurate, would render
the safe-harbor provision unworkable.” Post at 31, n 30. I
have difficulty understanding why my view is a “sweeping
interpretation,” when I am merely quoting verbatim the
statutory language, i.e., “[a] person subject to this article
may adopt and carry out a plan to eliminate present effects of
past discriminatory practices or assure equal opportunity .
. . .” MCL 37.2210. I agree with the dissent that the “safe
harbor does not protect only those plans that succeed in
eliminating present effects of past discrimination.”
Id.
(emphasis added).
Rather, the safe harbor protects all
properly approved plans that are “adopt[ed] and carr[ied] out
. . . to eliminate present effects of past discriminatory
practices or assure equal opportunity . . .”—but only such
plans.
2
approved defendant’s affirmative action plan, the majority
does not address this issue.
This silence, however, should
not mislead some to believe that the commission possesses
plenary authority to shield from liability any affirmative
action plan.
the
Rather, the commission is confined, not only by
requirements
of
the
constitution,
requirements of § 210 itself.
but
also
by
the
To reiterate, under § 210, the
commission only has the authority to approve, and thus to
shield from liability under the Civil Rights Act, affirmative
action plans that are “adopt[ed] and carr[ied] out . . . to
eliminate present effects of past discriminatory practices or
assure equal opportunity . . . .”2
2
Id.
The significance of this unremarkable observation—that
the language of § 210 means what it says—arises largely in the
event that the constitutionality of § 210 is ultimately
sustained, in particular, if predicated upon the premise that
what would otherwise be unconstitutional, i.e., a hiring plan
allowing
the
government-as-employer
to
treat
persons
differently on account of religion, race, color, or national
origin, is made constitutional by virtue of the standards set
forth for affording an affirmative action plan a “safe
harbor.” See City of Boerne v Flores, 521 US 507, 519; 117 S
Ct 2157; 138 L Ed 2d 624 (1997)(“Congress does not enforce a
constitutional right by changing what the right is. It has
been given the power ‘to enforce,’ not the power to determine
what constitutes a constitutional violation. Were it not so,
what Congress would be enforcing would no longer be, in any
meaningful
sense, the
‘provisions
of
the
Fourteenth
Amendment.’”); Marbury v Madison, 5 US (1 Cranch) 137, 177; 2
L Ed 60 (1803).
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
DAVID SHARP,
Plaintiff-Appellant,
v
No. 116171
CITY OF LANSING,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I agree with the majority that the safe-harbor provision1
of
the
Michigan
Civil
Rights
Act
(CRA)2
bars
statutory
liability under the CRA where an employer acts in conformity
with an approved affirmative action plan.
I also agree that
the mere existence of the safe harbor does not abrogate rights
generally guaranteed under the Equal Protection Clause of the
Michigan Constitution.3
However, I cannot agree that acts of
an employer that are protected by the safe harbor are subject
1
MCL 37.2210.
2
MCL 37.2101 et seq.
3
Const 1963, art 1, § 2.
to an equal protection challenge pursued directly under art 1,
§ 2.
Accordingly, because I believe that our Legislature
intended the CRA to provide the exclusive remedy for public
employment discrimination claims within the act's purview, I
register my dissent.
Our constitution protects against discrimination at the
hands of state actors by declaring that "[n]o person shall be
denied
the
equal
protection
of
legislature
shall
implement
this
the
laws
section
.
by
.
.
.
The
appropriate
legislation." Const 1963, art 1, § 2 (emphasis added). We are
bound
to
interpret
these
words
in
a
manner
that
sufficient effect to the "law the people have made."
gives
People
v Reichenbach, 459 Mich 109, 119; 587 NW2d 1 (1998).
The
starting point for ascertaining the meaning of words used in
the constitution is to interpret them according to their plain
and ordinary meaning as understood by the people who adopted
them.
Bond v Ann Arbor School Dist, 383 Mich 693, 699; 178
NW2d 484 (1970).
I. THE CONSTITUTIONAL CONVENTION
OF
1961
The reference to equal protection "of the laws," found in
both the state and federal constitutions, suggests a safeguard
against the formation and execution of laws or legislative
classification schemes that operate unequally.
It is well
settled that the equal protection guarantee is not a source of
2
substantive rights or liberties; rather, it is a measure of a
constitution's tolerance of government classification schemes.
Doe v Dep't of Social Services, 439 Mich 650, 661; 487 NW2d
166 (1992), citing San Antonio Ind School Dist v Rodriguez,
411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973).
It seems likely from the convention record that delegates
at the Michigan Constitutional Convention of 1961 had this
principle firmly in mind as they formed art 1, § 2. Delegates
from
both
protection
political
parties
clause
a
as
viewed
general
the
proposed
statement
of
equal
Michigan's
policies and goals with respect to public discrimination.
Drafters
of
art
1,
§
2,
envisioned
legislators,
not
constitutional delegates, as the authorities vested with the
power to implement those goals.
James K. Pollock, Republican
chairman of the Committee on Rights, Suffrage, and Elections
for
the
1961
convention,
observed
the
following
as
he
presented his committee's proposed equal protection clause to
the delegation:
We felt that, in the event we wanted to have a
specific nondiscrimination clause, it would be
better to state as a general policy of the
constitution that there shall be no discrimination
based on race, religion or national origin in the
enjoyment of political or civil rights, and that
the legislature should have the power to enforce
this by appropriate legislation. [2 Official Record
Constitutional
Convention
1961,
pp
741-742
(emphasis added).]
3
To be sure, Delegate Harold Norris, a Democrat, expressed
agreement with this basic principle of legislative delegation
despite
his
disagreement
with
other
aspects
of
the
recommendation tendered by Pollock's committee. Professor
Norris described the constitution as "a statement of goals and
not a detailing of means."
another
Democratic
Id. at 742.
delegate
on
the
Don Binkowski,
Pollock
committee,
characterized the constitution as a guiding document that
"must point the way" by providing a "strong, resolute and bold
restatement of the principles on which this country has been
founded."
Id. at 746.
He concluded his remarks to the
delegation by observing "[i]t is up to you to include in the
new constitution the statement of an individual's rights to
equal
protection
of
the
law
.
.
.
and
to
provide
for
legislative implementation of these principles." Id.4
II. TITLE VII
We
have
long
recognized
that
federal
courts'
interpretations of the law under circumstances analogous to
those before us on review are highly persuasive although not
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
for their violation, are left to legislative judgment.");
Smith v Dep't of Public Health, 428 Mich 540, 632; 410 NW2d
749 (1987)(Brickley, J.).
4
necessarily binding on us. Continental Motors v Muskegon Twp,
365 Mich 191, 194; 112 NW2d 429 (1961).
See, e.g., State Bd
of Ed v Houghton Schs, 430 Mich 658; 425 NW2d 80 (1988).
There is no question that legislative bodies generally
possess the power to enact detailed, comprehensive remedial
legislation that preempts parallel claims brought directly
under
a
constitution.
The
United
States
Supreme
Court
expressly recognized this fact in Smith v Robinson5, where it
observed:
In light of the comprehensive nature of the
procedures and guarantees set out in the [Education
of the Handicapped Act] and Congress' express
efforts to place on local and state educational
agencies the primary responsibility for developing
a plan to accommodate the needs of each individual
handicapped child, we find it difficult to believe
that Congress also meant to leave undisturbed the
ability of a handicapped child to go directly to
court with an equal protection claim to a free
appropriate public education. Not only would such a
result render superfluous most of the detailed
procedural protections outlined in the statute,
but, more important, it would also run counter to
Congress' view that the needs of handicapped
children are best accommodated by having the
parents and the local education agency work
together to formulate an individualized plan for
each handicapped child's education. No federal
district court presented with a constitutional
claim to a public education can duplicate that
process.
The
Smith
Court
held
that
the
Education
of
the
Handicapped Act (EA) provided the exclusive avenue through
5
468 US 992, 1011-1012; 104 S Ct 3457; 82 L Ed 2d 746
(1984).
5
which the plaintiffs could assert an equal protection claim
for publicly funded special education.6
Justice Blackmun
recognized the possibility that broadly drafted legislation
could preempt an entire field of substantive law. The Supreme
Court further acknowledged that a comprehensive remedial act,
such as the EA, will rightfully preclude the availability of
parallel constitutional claims because such duplication would
undermine the thoroughness of the statutory scheme.
I find highly persuasive here the reasoning employed by
the United States Supreme Court in Smith. It is the same
rationale
that
backed
the
Court's
6
earlier
holdings
that
The statute was later amended by Congress to allow
statutory and constitutional claims in tandem. Nevertheless,
the reasoning of Smith still stands for the proposition that
a comprehensive remedial scheme will preclude parallel
constitutional claims. See Zombro v Baltimore Police Dep't,
868 F2d 1364, 1368 (CA 4, 1989)(using Smith for the
proposition
that
"[t]he
Supreme
Court
has
similarly
demonstrated a disinclination to entertain § 1983 actions in
which plaintiffs have bypassed a comprehensive statutory
remedy in favor of a § 1983 claim predicated on an alleged
constitutional violation"); Mattoon v City of Pittsfield, 980
F2d 1, 6 (CA 1, 1992)(relying on Smith for the conclusion that
"even assuming a 'fundamental constitutional right' to safe
public drinking water, it would not alter the present
analysis. Comprehensive federal statutory schemes, such as the
[Safe Drinking Water Act], preclude rights of action under §
1983 for alleged deprivations of constitutional rights in the
field occupied by the federal statutory scheme"); Pfeiffer by
Pfeiffer v Marion Center Area Sch Dist, 917 F2d 779, 789 (CA
3, 1990)(holding that Smith is part of a consistent
application by the Supreme Court of the doctrine that a
comprehensive enforcement scheme will preclude parallel
constitutional claims).
6
Congress intended title VII7 to provide the exclusive judicial
remedy for discrimination claims in the federal employment
sector. See Brown v General Services Administration;8 Great
American Fed S & L Ass'n v Novotny9; Davis v Passman.10
Brown involved an African-American federal government
employee who claimed that the General Services Administration
(GSA) had racially discriminated against him by failing to
promote him to a higher grade.
He filed a complaint with the
GSA, then appealed to the federal Civil Service Commission,
both of which ruled against him. He then appealed from the
commission decision to a federal district court.
The suit
alleged jurisdiction under title VII as amended by the Equal
Employment
Opportunity
Act
of
1972,11
the
general
federal-question statute,12 the declaratory judgment act13 and
the Civil Rights Act of 1866, as amended.14 The district court
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.
7
dismissed the entire action for failure to conform to the
procedural requirements of § 717 of the Civil Rights Act of
1964.15
The Court of Appeals affirmed.
Brown v General
Services Administration, 507 F2d 1300 (CA 2, 1974).
In deciding the case, the Supreme Court engaged in a
detailed review of the legislative history underlying the
enactment of the 1972 amendments to title VII.
It noted that
comprehensive administrative, judicial and remedial schemes
have been included there.
It viewed the enactment of § 717 as
clear evidence of what Congress intended when it passed the
1972
title
VII
amendments.
It
quoted
extensively
from
committee reports and floor debates to ascertain the will of
Congress, before concluding:
This unambiguous congressional perception
seems to indicate that the congressional intent in
1972 was to create an exclusive, pre-emptive
administrative and judicial scheme for the redress
of federal employment discrimination. [Brown, 425
US 828-829.]
Brown denounced the idea that circuitous pleading might
enable a party to avoid the preemptive scheme set forth in
title VII.
It observed that an attempt to circumvent the
command
title
of
VII
would
defeat
Congress'
purpose
amending the statute in 1972.
15
42 USC 2000e-16 (title VII), as amended in 1972.
8
of
The crucial administrative role that each
agency together with the Civil Service Commission
was given by Congress in the eradication of
employment discrimination would be eliminated "by
the simple expedient of putting a different label
on
(the)
pleadings."
It
would
require
the
suspension of disbelief to ascribe to Congress the
design to allow its careful and thorough remedial
scheme to be circumvented by artful pleading.
[Brown, 425 US 833, quoting Preiser v Rodriguez,
411 US 475, 489-490; 93 S Ct 1827; 36 L Ed 2d 439
(1973).]
Ultimately, the Supreme Court concluded that the plaintiff's
other
statutory
claims
were
preempted
by
title
VII.
It
affirmed the lower courts and held:
[T]he established principle [found in Preiser]
leads unerringly to the conclusion that § 717 of
the Civil Rights Act of 1964, as amended, provides
the exclusive judicial remedy for claims of
discrimination in federal employment. [Brown, 425
US 835.]
Though the remedies sought in Brown were all statutory,
its holding was broader and unqualified.
In Novotny, supra,
the Supreme Court made clear that Brown's reasoning extended
to
encompass
the
notion
that
title
constitutionally based claims as well.
VII
preempts
Novotny brought an
equal protection claim through the vehicle of § 1985(3),16 and
an action under § 704(a),17 the retaliatory discharge provision
of title VII.
The Novotny Court relied on the principles set
forth in Brown to hold that title VII foreclosed plaintiff's
16
42 USC 1985(3).
17
42 USC 2000e-3(a).
9
equal protection claim.
It recognized that the availability
of parallel constitutional relief, under these circumstances,
would dramatically undercut the effectiveness of title VII.
Comparing Novotny to Brown, the Supreme Court stated:
Here, the case is even more compelling.
In
Brown, the Court concluded that § 717 displaced
other causes of action arguably available to assert
substantive rights similar to those granted by §
717.
Section 1985(3), by contrast, creates no
rights. It is a purely remedial statute, providing
a civil cause of action when some otherwise defined
federal right--to equal protection of the laws or
equal privileges and immunities under the laws--is
breached by a conspiracy in the manner defined by
the section. Thus, we are not faced in this case
with a question of implied repeal.
The right
Novotny claims under § 704(a) did not even arguably
exist before the passage of Title VII. The only
question here, therefore, is whether the rights
created by Title VII may be asserted within the
remedial framework of § 1985(3). [Novotny, supra at
376.]
The Supreme Court answered this question in the negative.
Applying
Brown's
holding
broadly,18
it
observed
that
18
The majority opinion relies on Davis, supra for the
proposition that a constitutional claim can proceed where a
plaintiff is not covered by title VII. This is accurate.
However, in analogizing the specific facts of Davis to this
case, the majority overlooks the distinction that the claim at
issue in Davis did not fall under the umbrella of title VII.
The plaintiff there, by virtue of her status as a
congressional employee, was not eligible for coverage under
title VII. Thus, her ability to pursue a constitutional remedy
would not undercut title VII's remedial scheme. Indeed, the
Davis Court reaffirmed Brown's exclusivity principle.
By contrast, this case involves an individual, Mr. Sharp,
who is protected by the applicable legislation, the CRA. He is
not barred by having a status that renders him outside the
(continued...)
10
restricting the plaintiff to an action under title VII was the
only way to preserve the integrity of title VII's remedial
scheme. Notwithstanding Novotny's broad constitutional claims,
the Supreme Court continued:
If a violation of Title VII could be asserted
through § 1985(3) [in the form of a constitutional
claim], a complainant could avoid most if not all
of these detailed and specific provisions of the
law. . . . Perhaps most importantly, the complaint
could completely bypass the administrative process,
which plays such a crucial role in the scheme
established by Congress in Title VII. [Id. at 375
376.]
The majority responds that Novotny "did not involve any
constitutional claim[s]" and therefore does not aid us in
determining whether a statute can ever preempt a claim brought
directly under the constitution.19
My colleagues acknowledge
that Novotny brought a claim under § 1985(3), but ignore the
underlying substantive posture of any action pursued through
the vehicle of § 1985(3).
Although § 1985 is certainly a
statute, it "creates no rights," the Novotny Court observes,
and is thus activated only "when some otherwise defined
federal right--to equal protection of the laws or equal
-
18
(...continued)
scope of its contemplation. His inability to state a
successful claim under the CRA does not place him in the same
position as the plaintiff in Davis. Factually speaking, he
more closely resembles the plaintiffs in Brown and Novotny,
where the Supreme Court restricted access to alternative
parallel remedies. Davis, supra at 247, n 26.
19
Slip op at 13.
11
privileges and immunities under the laws--is breached by a
conspiracy in the manner defined by the section."
Novotny,
supra at 376. [Emphasis added.]
Hence,
§
vindication
Novotny
1985
of
Court
is
a
remedial
constitutionally
was
unequivocal
vehicle
to
guaranteed
when
it
pursue
rights.
declared
the
The
that
a
violation of rights contemplated under title VII could not be
asserted through a § 1985(3) claim.
opined
that
pursuit
of
such
a
Id. at 375-376.
remedy
would
enable
It
a
complainant to "avoid most if not all of [the] detailed and
specific
provisions
of
the
law."
Id.
The
majority
is
inaccurate in suggesting that using § 1985(3) to vindicate a
violation of a constitutional right is substantively different
than suing directly under the constitution.
The majority uses its flawed analysis of Novotny as a
springboard from which to leap to the general proposition that
a legislative act can never "trump" the constitution. Nowhere
in Novotny can one locate the principle that the majority
attributes
to
it.
addressed
the
constitutional
conclusion.20
Indeed,
subject
of
remedies,
when
it
the
Supreme
statutory
has
reached
Court
has
preemption
of
the
opposite
It cannot be accurately said that Novotny lends
20
See Smith v Robinson, n 6 supra, which lists federal
cases that apply Smith in finding a statutory preemption of
(continued...)
12
credence to the conclusion that a constitutional claim can
never be preempted by statute.
The
majority
is
unpersuasive
in
its
attempt
to
distinguish Smith v Robinson, the Supreme Court case that
directly addresses the principle of statutory preemption of
parallel constitutional claims.21
As discussed above, the
Smith Court held that a complainant's equal protection claim
was preempted by a statute, the EA.
The majority reads Smith
to mean only that "if a statutory remedy is available for an
alleged constitutional violation, a party may be required to
seek to remedy that alleged constitutional violation through
procedures provided by the statute."
Slip op at 18-19.
It
then finds that Miss Smith's claims were covered by the EA.
and that Smith is inapposite here.
The flaw in its logic lies in its premise.
In Smith, the
principle claim involved the right of a handicapped child to
a free public education.
The claim that went to the United
States Supreme Court was for attorney fees.
Under the facts
in Smith, the plaintiff was covered by the act and was unable
20
(...continued)
constitutional claims.
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.
13
to obtain attorney fees under an equal protection claim.
Under the facts in Sharp, plaintiff was covered by the act and
sought relief for various equal protection claims.
Hence, in
each case a statutory remedy was available to and sought by
the plaintiff and the plaintiff sought relief, as well, for
the same alleged wrongs through a direct constitutional due
process claim.
Consequently, Smith is pertinent and supports
my conclusion that a comprehensive legislative scheme can
preempt certain constitutional claims where the Legislature is
authorized and intends to preempt an entire field of law.
In attempting to distinguish the holding in Smith from
the one I propose today, the majority points to a footnote in
Smith. In it, the United States Supreme Court remarks that, if
there
were
no
statutory
remedies
for
constitutional
violations,
the power of federal courts to grant the relief
necessary
to
protect
against
constitutional
deprivations or to remedy the wrong done is
presumed to be available in cases within their
jurisdiction. [Id. at 1012, n 15, quoted ante at
19.]
This observation has no bearing on what the Court in Smith
actually did decide:
comprehensive
constitutional
when the Legislature implements a
remedial
equal
scheme
protection
to
rights,
preempt parallel constitutional claims.
14
rectify
the
certain
scheme
will
The footnote is dictum because the Smith Court found that
Congress had implemented such a comprehensive remedial scheme
in the EA. Examined closely, the footnote stands only for the
proposition that, absent a statutory scheme to remedy equal
protection violations, courts can grant appropriate relief
directly under the constitution.
This goes precisely to my point.
Indeed, if there were
no title VII, or no EA, there certainly would exist a role for
the courts in remedying the constitutional deprivations those
statutes
address.
The
courts,
within
jurisdictional
limitations, would fill the void in legislation and right
wrongs through claims brought directly under the constitution.
Yet the fact that Congress did enact such legislation is
thought to manifest dissatisfaction with existing remedies the
courts were providing.
It is said to evidence a desire,
instead,
unsuccessful
to
replace
solutions
with
a
comprehensive scheme that preempts the field, including the
very preexistent constitutional claims that warranted the
legislation.
Hence, the holding of Smith is that the EA's
legislative history leads to the conclusion that the act "is
the exclusive avenue through which the child and his parent or
guardian can pursue their claim."
Therefore,
despite
the
Id. at 1013.
majority's
unsubstantiated
assertion that a statute cannot "trump" the constitution,
15
federal courts have long acknowledged the opposite principle.22
Consistent with the logic working in Smith, these courts have
applied Brown and Novotny to hold that title VII preempts
constitutional equal protection claims that fall within the
jurisdiction of the statute23. See, e.g., Ethnic Employees of
the Library of Congress v Boorstin, 243 US App DC 186, 196;
751
F2d
1405
(1985)(observing
that
"[a]llowing
federal
employees to recast their title VII claims as constitutional
claims would clearly threaten those same policies"); Day v
Wayne Co Bd of Auditors, 749 F2d 1199, 1204-1205 (CA 6, 1984);
Kizas v Webster, 227 US App DC 327, 345; 707 F2d 524 (1983)(a
Fifth Amendment claim based upon race and sex discrimination
22
As stated in n 6, numerous federal cases have cited
Smith as authority for making the type of ruling that the
majority claims cannot be made.
23
Some federal circuits have held that title VII does not
necessarily provide the only remedy available for employment
discrimination claims. See, e.g., Beardsley v Webb, 30 F3d
524, 527 (CA 4, 1994). However, many of these decisions dealt
with claims arising from facts beyond the contemplation of
title VII, such that recognizing them would not encroach upon
the area defined by title VII.
Even those circuits that have interpreted Brown narrowly
have not, as the majority suggests, done so on the basis of
any distinction between legal and equitable remedies. See,
e.g., Annis v Westchester Co, 36 F3d 251 (CA 2, 1994); Notari
v Denver Water Dep't, 971 F2d 585 (CA 10, 1992). Instead, most
have so held on the basis that they disagree about the scope
of coverage that Congress intended. The majority offers no
case holding that it is beyond the inherent power of any
legislative body to enact a statutory scheme that preempts
parallel constitutional claims.
16
was barred by title VII); Purtill v Harris, 658 F2d 134, 137
(CA
3,
1981)(relying
on
Brown
to
hold
that
the
Age
Discrimination in Employment Act, modeled after title VII,
preempts judicial remedies based directly on the constitution
for claims of age discrimination in federal employment);
Lawrence v Staats, 214 US App DC 438, 439-441; 665 F2d 1256
(1981) (a Fifth Amendment claim based on race discrimination
would be barred if § 717 applied); Davis v Califano, 198 US
App DC 224, 225, n 1; 613 F2d 957 (1979); Hofer v Campbell,
189 US App DC 197, 200; 581 F2d 975 (1978)(a Fifth Amendment
claim based on national origin discrimination was barred by
title VII); Richardson v Wiley, 186 US App DC 309, 310; 569
F2d 140 (1977); Gissen v Tackman, 537 F2d 784, 786 (CA 3,
1976); Lutes v Goldin, 62 F Supp 2d 118 (D DC, 1999); Brug v
Nat'l Coalition for the Homeless, 45 F Supp 2d 33, 42 (D DC,
1999); Clement v Motta, 820 F Supp 1035 (WD Mich, 1991).
In Kizas, the United States Court of Appeals for the
District of Columbia rejected a reverse discrimination claim
brought by white clerical and support employees of the Federal
Bureau
of
Investigation.
The
complainants
alleged
that
including affirmative action principles in the qualifying
process for special agents violated their Fifth Amendment
constitutional right to equal protection as well as their
statutory title VII rights.
The court concluded that the
17
plaintiffs' constitutional claim was "unavoidably foreclosed
by [the] precedent" of Brown. Kizas, at 345.
remedy was under title VII.
Their sole
The Kizas Court observed:
The Kizas complainants suggest, in repeated
but
less
than
lucid
argument,
that
the
Constitution's equal protection principle entails a
stricter restraint on classification by race or sex
than does Title VII and would shelter them against
"reverse" discrimination that the statute may
permit. We need not linger over this suggestion.
. . .
They may not circumvent the "careful and
thorough remedial scheme" Congress ordered for
them; their access to court is determined by that
effective, albeit demanding statute. [Kizas, at
345-346.]
III. THE CRA
In the instant case, Sharp is covered by the protections
afforded through the CRA--a legislative enactment every bit as
detailed and comprehensive as its federal counterpart, title
VII.
Section 717 contains a general prohibition of federal
employment "discrimination based on race, color, religion,
sex, or national origin." § 717(a).
Michigan's CRA contains
a proscription at MCL 37.2202(1), which provides in part:
An employer shall not . . . :
(a) Fail or refuse to hire, or recruit, or
discharge, or otherwise discriminate against an
individual
with
respect
to
employment,
compensation, or a term, condition, or privilege of
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
18
Section 717 also provides the Civil Service Commission
with the power and authority to enforce the civil rights
requirements of title VII. Michigan vests its own Civil Rights
Commission with similar enforcement powers. Article 6 of the
CRA
delegates
37.2601,
and
powers
the
and
Civil
duties
Rights
to
the
commission,
Department,
MCL
MCL
37.2602.
Section 602(c) establishes in the Department the authority to
[r]eceive,
initiate,
investigate,
conciliate,
adjust, dispose of, issue charges, and hold
hearings on complaints alleging a violation of this
act, and approve or disapprove plans to correct
past discriminatory practices which have caused or
resulted in a denial of equal opportunity with
respect to groups or persons protected by this act.
In addition, § 717(c) outlines a detailed administrative
grievance procedure that a complainant must follow before
filing suit in federal district court.
It gives an aggrieved
federal employee thirty days from a final order of the Civil
Service Commission to register an appeal in a district court.
Michigan's CRA provides an almost identical structure.
See MCL 37.2605-37.2606.
Section 605 requires the state
commission to issue written findings of fact and conclusions
of law to support a conclusion that an employer has engaged in
discriminatory
practices.
The
section
also
details
the
various remedies available to the commission following a
finding of discrimination in violation of the CRA.
Finally,
§ 606 provides the complainant with the right to appeal from
19
any final decision of the commission to a circuit court within
thirty days.
The parallels that exist between title VII and the CRA
are undeniable. Similarly, the concerns apparent in Brown and
Novotny about parallel claims that threaten to dilute the
comprehensive scheme carefully crafted by Congress also exist
here.
Michigan's CRA provides the kind of detailed scheme
that the United States Supreme Court recognizes as providing
the
sole
umbrella.
remedy
for
claims
arising
under
its
coverage
IV. LEGISLATIVE INTENT
Moreover, the language of the act, case law, and the
legislative record persuasively support the proposition that
our Legislature intended the CRA be the sole remedy for state
employment discrimination claims in Michigan.
The primary
goal of statutory interpretation is to ascertain and give
effect to the intent of the Legislature.
Frankenmuth Mut Ins
v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
Like
title
description
VII,
of
the
its
CRA
does
position
antidiscrimination law.
not
in
contain
the
an
constellation
of
Thus, it is appropriate to look for
legislative intent in other, less obvious places.
supra at 825.
express
Brown,
"Where the mind labours to discover the design
of the legislature, it seizes everything from which aid can be
20
derived . . . ."
United States v Fisher, 6 US (2 Cranch) 358,
386 (1805).
To begin, the language of the CRA itself manifests an
apparent intent to establish a broad, comprehensive scheme
that "defines" and remedies violations of civil rights.
The
preamble to the CRA begins: "An act to define civil rights
. . . ."
1976 PA 453 (emphasis added).
It continues by
describing its own purpose as "to prohibit discriminatory
practices" and "to provide remedies and penalties . . . ." Id.
Thus,
on
its
face,
the
CRA
shows
that
the
Legislature
envisioned it as comprehensive and detailed.
The legislative history, as gathered from House and
Senate bill analyses generated before the act's passage in
1976, bears out this suggestion.
The legislative documents
explain that the act was intended to address the problems
caused by the splintered remedial systems that existed before
1976 in the area of civil rights.
The report accompanying
House Bill 4055 described the bill as a consolidation of these
concepts into a single law that would
place legal and procedural recourse for all civil
rights discrimination within the Department of
Civil Rights, enabling the Department to provide
more effective remedies for those who have been
victimized by unlawful discrimination. [Emphasis
added.]
The bill analysis further describes the bill as a means
of "[outlining] more specifically the legal action a person
21
could take if that person feels that he or she has been
unfairly discriminated against."
(Emphasis added.)
The
"Argument For:" section of the bill analysis includes the
following two statements of purpose, both bearing particular
relevance to this case:
The bill would provide a uniform statutory
framework to deal with the many different forms of
discrimination. [Emphasis added.]
* * *
The bill would include the concept of
discrimination enunciated by the U.S. Supreme Court
with respect to equal protection under the
Constitution.
Hence,
the
CRA,
like
its
federal
counterpart,
was
intended as a vehicle to define and consolidate the various
remedial measures accorded by other statutes.
was
envisioned
as
incorporating
the
Moreover, it
"concept
of
discrimination" inherent in the Equal Protection Clause.24
Courts have interpreted the CRA as bearing a singular
objective in harmony with the Michigan Constitution and as an
instrument to interpret and enforce its provisions. See, e.g.,
Thompson v Bd of Ed Romeo Comm Schs, 519 F Supp 1373, 1380 (WD
Mich, 1981) (interpreting Michigan law to conclude that the
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
are interpreted as embodiments of the same concepts. See,
e.g., Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977);
Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931).
22
"general object [of the CRA] is to define and protect certain
civil rights of individuals under the jurisdiction of Michigan
law"); Neal v Dep't of Corrections, 232 Mich App 730, 734; 592
NW2d 370 (1998)("[t]he act is remedial and must be liberally
construed to effectuate its ends").
I find that the intent that appears to underlie the CRA
supports the proposition that the Legislature meant it to
provide the sole remedy for public employment discrimination
claims in Michigan.
Moreover, the United States Supreme
Court's decisive interpretation in Brown, Novotny, and their
progeny
of
the
breadth
of
§
717
of
title
VII
renders
convincing guidance in determining the breadth of Michigan's
CRA.
Just as title VII provides the sole remedy for equal
protection claims involving federal governmental employment
discrimination, the CRA provides the sole remedy for Michigan
governmental employment discrimination.
V. ANALOGY
A Michigan complainant like Mr. Sharp is in the same
position as the complainants in Kizas.
the
"careful
and
thorough
remedial
He may not circumvent
scheme"
that
the
Legislature, in response to the direct call of the people, has
ordered for him. Kizas, at 346. His access to court "is
determined by that effective, albeit demanding, statute." Id.
He may not pursue a state constitutional equal protection
23
claim that falls within the purview of the CRA.25
Allowing
that a parallel and circuitous claim would dilute the CRA's
purpose, just as allowing Novotny to seek constitutional
redress would have diluted the carefully crafted scheme of
title VII.
In addition to the persuasiveness of federal analogous
law is the sheer counter intuitiveness of allowing an equal
protection claim to survive in this case.
If a complainant
were entitled to relief under the state Equal Protection
Clause as an alternative to the CRA, the safe harbor provision
25
The majority intimates that Lewis v Michigan, 464 Mich
___; ___ NW2d ___ (2001), issued with this decision, holds
that a complainant has a direct claim under the constitution
for equitable relief from an approved affirmative action plan.
Slip op at 15, n 13. The issue in Lewis is whether this Court
should recognize the existence of a claim for monetary damages
directly under the Equal Protection Clause. It does not
address whether a party can seek equitable relief under the
auspices of the constitution.
The majority miscasts my position in this dissent as one
that leaves certain Michigan citizens entirely without civil
rights or constitutional protections. Also, it cites Bolling
v Sharpe, 347 US 497; 74 S Ct 693; 98 L Ed 884 (1954) as
assuming that Congress would amend title VII eighteen years
later to retain the availability of equitable relief directly
under the constitution. The use of a 1954 Supreme Court case
to predict the effects of a legislative act in 1972 evidences
a remarkable twist of the laws of time and space. Moreover,
Bolling is inapposite because it describes federal employment
discrimination remedies that existed before 1972. The 1972
amendments of title VII were aimed at altering the legal
foundation for pursuing federal employment discrimination
claims in the public sector. Brown, Novotny, Smith, and each
case upon which I rely, concern the state of employment
discrimination law after 1972.
24
would be dramatically weakened.
CRA
would
fail
If the safe harbor were
destroyed,
the
in
one
of
its
essential
purposes:
to provide for affirmative action in order to
alleviate past instances of discrimination.
In
turn,
the
delegates
to
the
1961
Constitutional
Convention would have failed in their attempt to draft art 1,
§ 2 as a set of policy goals "pointing the way" for the
Legislature. Such a result is inconsistent with the expressed
policy goals of the constitutional framers and the intent of
the Legislature in enacting the CRA.
In addition, it ignores
the persuasive direction charted by the United States Supreme
Court in Brown,26 Novotny, and
their respective progeny.
26
To counter the unqualified, direct holding of Brown, the
majority relies on a misreading of it. Brown does not state
that the 1972 amendments to title VII left intact the
availability of injunctive relief for federal employment
discrimination directly under the Fifth Amendment. There is
little question that the Brown Court regarded earlier remedies
for employment discrimination in the public sector as
impotent. See Brown, supra at 826 ("If administrative remedies
were ineffective, judicial relief from federal employment
discrimination was even more problematic before 1972.")
Injunctive relief, like the balance of remedies available
before 1972, effected nothing to merit celebration among
opponents of workplace discrimination.
According to the Brown Court, that was the weakness that
Congress intended to address through the Equal Employment
Opportunity Act of 1972. Its aim was to preempt the field by
providing a comprehensive, exclusive slate of remedies,
displacing existing legal and equitable claims. I find that
our Legislature intended the CRA to have similar preemptive
force.
25
VI. SHARP 'S INADEQUATELY PLEADED CASE
A more detailed analysis of whether plaintiff has pleaded
and
preserved
any
other
direct
constitutional
claim
is
appropriate here.
MCR 2.111 provides:
(B) Statement of Claim. A complaint, counter
claim, cross-claim, or third-party complaint must
contain the following:
(1) A statement of the facts, without
repetition, on which the pleader relies in stating
the cause of action, with the specific allegations
necessary reasonably to inform the adverse party of
the nature of the claims the adverse party is
called on to defend[.]
In his second amended complaint, plaintiff pleaded as
follows:
7. Notwithstanding rejection of Plaintiff's
application for employment as a fire fighter in the
Lansing fire department, Defendant city of Lansing
and the Lansing fire department have continued to
accept applications for employment and have
continued to hire persons as fire fighters who are
not certified fire fighters and not as well
qualified as Plaintiff.
***
10. Defendant city of Lansing and its fire
department have limited, segregated or classified
plaintiff in a way that tends to deprive him of
employment opportunities in the public fire
department of the city of Lansing, or otherwise
adversely affects his status as an applicant
because of his race and sex.
***
13. Defendant city of Lansing has adopted a
policy of discriminating in employment on the basis
26
of race, sex and national origin by means of
treating white male applicants for employment less
favorably than applicants who are not white males.
14. Defendant city of Lansing has applied its
policy of discriminating in employment on the basis
of race, sex and national origin to the Lansing
fire department.
15. Defendant city of Lansing and its fire
department
have
manipulated
facially
neutral
testing procedures to discriminate on the basis of
race, sex and national origin by means of giving
second, third and fourth chances to members of
favored races, sex or national origin.
***
18. Defendant city of Lansing obtained
approval for a voluntary affirmative action plan in
1987 but has abandoned the approved plan.
19. Defendant's affirmative action plan lacks
any
rational
connection
with
a
legitimate
governmental objective for the reason that ten
years of enforcement of the said voluntary
affirmative action plan has had no effect on the
distribution of women and minorities in the non
supervisory ranks of the Lansing fire department.
20. Defendant city of Lansing adopted both its
approved voluntary affirmative action plan, and its
unapproved voluntary affirmative action plan with
intent to discriminate on the basis of race and
sex.
21. The only effect of ten years of voluntary
affirmative action in the Lansing fire department
has been to deprive white males of employment
opportunities in the Lansing fire department.
22. Plaintiff has sustained damages in the
premises in excess of $10,000.00, in violation of
the form of the Elliott Larsen Civil Rights Act and
Const 1963, art 1, § 2.
27
Wherefore, Plaintiff prays that this Honorable
Court enter its order enjoining Defendant city of
Lansing from discriminating in employment on the
basis of race, sex or national origin . . . .
Plaintiff's
pleadings
acknowledge
the
apparent
constitutionality of an affirmative action plan that has been
approved by the commission and enacted in conformity with
§ 210. There is no dispute that the city's plan satisfies both
criteria. In his answer to defendant's affirmative defenses,
plaintiff stated:
Plaintiff
affirmatively
avers
that
an
affirmative action plan may be adopted and carried
out "if the plan is filed with the commission under
rules of the commission and the commission approves
the plan."
As
the
majority
concedes,
pursuing a claim under the CRA.
plaintiff
is
barred
from
By extension, then, he has
failed to state a cognizable claim under the Equal Protection
Clause of the Michigan Constitution.
Simply stated, he has
nothing left to pursue on remand.
The majority misrepresents my position as asserting that
the only way to challenge a state actor's implementation of a
law is to challenge the law itself.
It interprets this
dissent as in conflict with Batson v Kentucky, 476 US 79; 106
S Ct 1712; 90 L Ed 2d 69 (1986),27 and Yick Wo v Hopkins, 118
27
Batson held that the federal Equal Protection Clause
forbids a prosecutor from using peremptory challenges to
remove potential jurors because of race.
28
US 356; 6 S Ct 1064; 30 L Ed 220 (1886).28
In so doing, it
overlooks a crucial fact that distinguishes Batson and Yick Wo
from the instant case:
the relationship of the underlying
"law" to the conduct alleged in this case is distinguishable
from the relationship of those two variables as they operated
in Batson and Yick Wo.
The key difference is that § 210
expressly allows the conduct in which defendant engaged.
It
permits racial discrimination within certain parameters.
The
city of Lansing governed itself within those constitutional
parameters.
Though he tried, Mr. Sharp could not establish a
factual issue to the contrary.
By
contrast,
the
underlying
law
in
Batson
did
not
expressly allow the conduct in which the Kentucky prosecutor
engaged.
The "law" in Batson did not permit prosecutors to
exercise peremptory challenges on the basis of race.
not
even
address
race.
Thus,
the
It did
unconstitutional
implementation at work in Batson was found in the "deviation"
from what the underlying constitutional law would allow. That
"law" had been applied to Batson in a way that denied him
equal treatment under it.
I apply the same standard to Mr.
Sharp's claim, but reach a different result because the law in
28
The Yick Wo Court found an equal protection violation
where an otherwise neutral San Francisco city ordinance was
applied unequally to citizens on the basis of race.
29
his case operated exactly as legislators intended it should.29
There
was
no
deviation
from
the
scheme
intended
by
the
Michigan Legislature.
However, despite Mr. Sharp's failure to articulate a
cognizable
claim,
necessarily
be
another
without
a
in
his
remedy.
position
A
would
complainant
not
could
challenge the constitutionality of the CRA generally, or of
the
safe
harbor,
testing
whether
either
constitutional implementation of art 1, § 2.
to do so.
constitutes
a
Sharp chose not
Alternatively, a complainant could challenge the
commission's approval of an affirmative action plan, arguing
that the plan fails to conform to criteria required by the CRA
for approval.30 Again, Sharp chose not to pursue such a claim.
29
Similarly, in Yick Wo, the law at issue did not
expressly authorize discrimination on the basis of race. It
established an approval process for operating certain types of
laundry businesses in San Francisco. The process was used to
deny business opportunities to Chinese immigrants, while
granting them to non-Chinese applicants. The "law" in Yick Wo
did not authorize city officials to treat Chinese applicants
differently than others.
Rather, it established a neutral
permitting process. City officials applied that law unequally,
thereby violating the equal protection guarantee of the
constitution. Such a fact pattern is easily distinguishable
from the instant case, where an admittedly constitutional
statute prescribes the very discrimination from which
plaintiff claims to have suffered.
30
The concurrence is mistaken in its suggestion that I
agree that the "safe harbor encompasses only affirmative
action plans that are 'adopt[ed] and carr[ied] out . . . to
eliminate present effects of past discriminatory practices or
assure equal opportunity . . . .'" Slip op at 2. The safe
(continued...)
30
Finally, a complainant could articulate a challenge to a
public
employer's
actions
in
implementing
a
plan,
by
demonstrating that they fell outside the scope authorized by
§ 210.
He could establish a fact question on such a claim by
showing, hypothetically, that the employer hired a minority
firefighter despite the fact that the individual had failed a
required physical examination.
would
not
be
qualified
even
Hiring such a candidate, who
with
the
benefit
of
the
affirmative action plan, would not fall within the protection
of the safe harbor.
A complainant could establish a fact
question whether the employer used some other unapproved plan,
thereby violating complainant's rights.
Such acts would not
be protected by the safe harbor and the complainant's art 1,
§ 2 rights could be vindicated under the CRA.
Sharp attempted to create a fact question under certain
of these theories, but failed.
Hence, he is now left with
nothing by way of an action arising either under the CRA or
directly
under
art
1,
§
2.
30
With
no
cognizable
claims
(...continued)
harbor does not protect only those plans that succeed in
eliminating present effects of past discrimination. Section
210 contemplates protection for any properly approved plan
that is reasonably created with the intention of eliminating
discrimination or furthering equal opportunities in the
workplace. The section specifically refers to plans "to"
eliminate effects of discrimination, not plans "that" do in
fact
eliminate
them.
The
concurrence's
sweeping
interpretation, if accurate, would render the safe-harbor
provision unworkable.
31
remaining that have not already been discharged, his cause was
properly dismissed by the Court of Appeals.
VII. CONCLUSION
I agree with the majority that the safe harbor protects
the city of Lansing from an action against it under the CRA.
I further acknowledge that the Legislature cannot abrogate
constitutional rights through passage of a statute.
the constitution can delegate authority.
However,
The CRA is the
Legislature's response to one such constitutional delegation
of authority.
I believe that art 1, § 2, envisioned that the
Legislature would pass an act like the CRA that could be the
exclusive remedy for vindicating civil rights claims against
public employers in Michigan.
expressed
intent
of
I base this conclusion on the
certain
constitutional
convention
delegates and by analogy to a persuasive line of federal
authority regarding title VII and the federal equal protection
clause.
The CRA closely resembles title VII that the United
States Supreme Court in Brown and Novotny held preempted the
field of employment discrimination claims under federal law.
Allowing the pursuit of parallel constitutional claims to
remedy wrongs cognizable under the CRA is not only illogical,
it threatens to undermine and destroy the comprehensive design
of the statute.
Such a contrary ruling could not reflect the
intent of either the Legislature in passing the act or the
32
people in adopting the Michigan Constitution.
The majority first misconstrues my position, then finds
it "a startling proposition."
Slip op at 18.
It states my
position as being that, if a state actor commits ongoing
employment
discrimination
violative
of
the
state
Equal
Protection Clause but not violative of the CRA, the courts
cannot end the discrimination.
My position is that, if a
state actor commits employment discrimination by performing
acts covered by the CRA, the state Equal Protection Clause
cannot be used to end the discrimination.
I have demonstrated that this proposition has extensive
support in holdings of the United States Supreme Court.
Moreover, a contrary holding, the majority's holding, sadly
weakens the "noble contributions of the state and federal
courts" in fighting discrimination that it purports to esteem.
The majority states that my reading of the law allows the
Legislature to "trump" the Michigan constitution.
It says
that "it is axiomatic that the Legislature cannot grant a
license to state and local governmental actors to violate the
Michigan Constitution."
Slip op at 21.
However, a close
examination reveals that this is mere rhetoric and misses the
mark.
Without dispute, the constitution can delegate to the
Legislature the task of devising a comprehensive statutory
33
scheme to protect specific constitutional rights.
Art 1, § 2
contains such a constitutional provision, and it is the one
involved in this case.
It is also beyond dispute that, when
one person's constitutional rights conflict with another's,
courts will render a decision whereby one right is sublimated
to the other.
This dissent, simply stated, stands for the proposition
that, when a state actor discriminates against a person in a
manner made lawful by the CRA, that person's art 1, § 2 rights
are sublimated to the art 1, § 2 constitutional rights of
others to have the state actor discriminate in their interest.
Art 1, § 2 delegated to the Legislature the power to implement
it.
In turn, the Legislature authorized the sublimation of
one person's equal protection rights over another's when it
created § 210.
The majority also distorts the meaning of the dissent
when it asserts that I would prevent the Court from hearing
plaintiff's claim that defendant discriminated against him.
It states that the dissent would prevent plaintiff from
recovering for defendant's acts that, although not violative
of the CRA, violate the Due Process Clause.
However, one
should note, it neglects to specify the acts. What conduct by
defendant does plaintiff claim violated art 1, § 2, but did
not
violate
the
CRA?
In
fact,
34
plaintiff
has
named
no
governmental
action
by
defendant
that
survived
summary
disposition, or that should have, and that, also, violated the
Due Process Clause.
Here, Sharp cannot sue under the CRA because of the bar
imposed by § 210.
Both the nature of his claim and his
pleadings preclude the availability to him of a parallel
constitutional claim. The CRA provides his exclusive remedy.
Because the Court of Appeals properly dismissed this action,
I would affirm.
35
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