Time is Not on Our Side: Why Specious Claims of Collective Bargaining Rights Should Not Be Allowed to Delay Police Reform Efforts

65 Pages Posted: 2 Nov 2018 Last revised: 17 Oct 2019

See all articles by Ayesha Hardaway

Ayesha Hardaway

Case Western Reserve University School of Law

Date Written: October 10, 2018


Many view the passage of the Violent Crime Control and Law Enforcement Act of 1994 as the best chance for police departments to make meaningful and lasting improvements. That legislation provides the federal government with the authority to investigate and sue local law enforcement agencies for engaging in a pattern or practice of policing that violates the rights of individuals. However, police unions have attempted to intervene in structural reform litigation designed to remedy unconstitutional policing practices. Those attempts have largely been based on employment rights conferred through collective bargaining laws and similar employment protections. The unions argue that the terms of consent decrees crafted to remedy unconstitutional policing impair their interests and rights as detailed in pre-existing terms of collective bargaining agreements. Legal scholars have argued that the collective bargaining terms serve as impediments to police reform efforts. And while courts in some jurisdictions have found that employers cannot unilaterally change a collective bargaining agreement when constitutional violations are at issue, courts have not directly addressed the issues presented when consent decree requirements contradict union contract terms. This Article seeks to fill the gap in the existing literature as it provides an empirical analysis of all consent decrees since 1997 to evaluate the impact they were intended to have on union contracts. It also argues that the unions do not have a legal right to bargain on issues related to use of force policies and police accountability because such issues are outside of the permissible scope of negotiable issues. Court decisions permitting unions to intervene on the basis of specious interests only aid the delay of much needed reform efforts. The Article proposes that both state and federal courts should apply the managerial-function standard, which removes policy and public interest issues from collective bargaining, when considering whether unions have a right to oppose settlement agreements in structural police reform litigation. The Article also proposes that state and local governments promulgate ordinances clarifying the scope of public employee collective bargaining rights, as well as the authority of local officials to make management and policy decisions for police departments.

Keywords: police reform, police brutality, collective bargaining, consent decrees, police unions, managerial prerogative

JEL Classification: K10, K31

Suggested Citation

Hardaway, Ayesha, Time is Not on Our Side: Why Specious Claims of Collective Bargaining Rights Should Not Be Allowed to Delay Police Reform Efforts (October 10, 2018). 15 Stanford Journal of Civil Rights and Civil Liberties 137 (2019), Case Legal Studies Research Paper No. 2019-16, Available at SSRN: https://ssrn.com/abstract=3264214

Ayesha Hardaway (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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