After Walter Olson wrote about “taming police unions” at Arc Digital, which curiously relied on all manner of newfound scholarship despite the fact that an old trench lawyer has been writing about this for many years before academics discovered the problem, an interesting question was raised. Was it possible to allow other public sector unions, teachers, clerical staff, nurses, firefighters and others, while prohibiting police from unionizing?

Putting aside the other insurmountable failings of public sector unionism, it’s never been tried. Once laws were enacted to allow public employees to form collective bargaining units to negotiate the terms and conditions of employment, it was no less applicable to cops than anyone else. Now, people are considering alternatives.

A valuable step that recently won support from Harvard labor law scholar Benjamin Sachs would be to restrict the scope of collective bargaining to economic outcomes, such as wages and benefits, thus excluding both discipline for misconduct on the one hand and policy changes on the other. That’s not a new idea — I remember it coming up as long ago as the 1970s — but it is an excellent and timely one.

While I don’t doubt Wally’s memory, I was around too, and it wasn’t a serious idea and never happened. But hey, now that a Harvard labor law scholar supports it, it suddenly matters? Fair enough. Can we allow teachers to negotiate conditions of termination but not cops?

My initial reaction was that we can’t. They’re all public employees. Police have been as much a part of public sector unionism as any other occupation. How do we discriminate against police but in favor of teachers? Wally didn’t see any reason why we couldn’t, arguing that there was no constitutional prohibition, but the lack of a Supreme Court opinion saying so wasn’t because it was so, but because there has never been such discrimination and there was no reason for the Court to consider the issue. Even cops enjoy the Equal Protection clause.

Since being a police officer isn’t a suspect classification (not that kind of “suspect,” so stop it), it wouldn’t be subject to strict scrutiny. Could discrimination against cops, denying them alone among all public sector occupations, the right to organize and bargain pass muster under the rational basis test?

Justice Wally saw no problem. I was less sanguine.

On the one hand, it’s fairly easy to draw up a long list of totally sound reasons why cops are different, and why it’s rational to treat their ability to unionize differently. But that’s from a non-labor law perspective, parsing the nature of their job and the need to control police more along the lines of the military than the clerical staff.

The military can’t be unionized, so why should cops? Then again, the military has always been singled out in law for separate treatment from everyone else, including having its own criminal law, the Uniform Code of Military Justice. In contrast, the police have always been afforded the same collective bargaining rights as any other public sector union, so why, all these years later, should they be distinguished from other public employees and denied those rights? Because their unions did their job too well? Because they’re suddenly the rum raisin instead of the maple walnut flavor of ice cream?

From a labor law perspective, rather than a police reform perspective, cops aren’t any different than any other public employee. They go to work and do their job. If the job didn’t serve the public good, then it shouldn’t exist. But as long as they do, and they do exist at least for the moment, do they not have as much right to negotiate over their salary, health care, pensions and termination as much as any other public sector employee?

Of course, there’s the kicker. Termination. Cops are given enormous authority to use force against other people, and with that authority goes the ability to abuse it or, from another perspective, to be falsely accused of abusing it. Police unions are acutely aware of this because cops are acutely concerned with it. So they negotiate non-monetary protections, such as arbitration of discharge and lesser penalties, to protect cops against improper employment sanctions.

And politicians kind of love these items, as they not only make police unions happy, which keeps campaign contributions directed in the right direction, but don’t raise taxes. The public hates tax increases, but it largely doesn’t care about mandatory arbitration clauses or a 24-hour hiatus between conduct and questioning.

One potential avenue of exposure is management prerogatives, the ability of management to make decisions reserved to it in order to control the functioning of its department. Unions have fought to limit this for obvious reasons. The less stuff taken off the table, the broader their ability to negotiate. That’s true for all public employees. Teachers who are accused of touching a kid in the wrong place is just as concerning as a cop accused of beating a homeless guy before he shoots him.

So there are many areas that raise rational basis concerns that would justify distinguishing unionization for cops from other public sector employees, but are they the sort of reasons that would overcome Equal Protection analysis, or are they the sort of concerns labor law fails to recognize as justifications for impairing the ability to form an association for the benefit of collectively bargaining?

The question of whether police can be singled out from all other public employees, either to deny them the right to collectively bargain or to limit the purview of their negotiations, may be open to change, even though that’s never been done before. But it’s hardly simple or easy, whether as a matter of law or political expediency. And even if it can be done, would it work or would there be a new pandemic of blue flu to pay us back for our insolence? Even though cops may not be the heroes of the moment, most of us still want to know they’ll show up when we call.