Ferguson, Fisher, and the Future: Diversity and Inclusion as a Remedy for Implicit Racial Bias

This article examines a number of key issues posed by the Supreme Court\u27s recent decision to once again examine the constitutionality of the affirmative admissions system used by the University of Texas at Austin. Its focus is, however, not on the constitutionality of racial preferences, but rather on the obligations imposed on institutions that use such preferences. The article makes two unique contributions to the literature. First, it notes and discusses the role of implicit bias in the current American political and social scene and connects implicit bias to the affirmative action debate. Second, it focuses on legal education as an exemplar of the obligations and opportunities inherent in the use of admissions preferences. This nation\u27s colleges and schools of law are subject to two very specific accreditation obligations imposed by the American Bar Association: the need to engage in affirmative action that results in the admission of a diverse class, and the need to articulate and attain specific educational outcomes. As part of this discussion, the article notes both the disconnect between these two accreditation standards in the current standards formulation and discusses ways in which law schools can use the insights posed by current social science to achieve positive educational outcomes