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54 Colum. J.L. & Soc. Probs. [i] (2020-2021)

handle is hein.journals/collsp54 and id is 1 raw text is: COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS Volume 54 Number 1 Fall 2020 Copyright C 2020 by the Columbia Journal of Law and Social Problems, Inc. OUT OF SIGHT, OUT OF MIND: RURAL SPECIAL EDUCATION AND THE LIMITATIONS OF THE IDEA........................................1 In 1975, the Individuals with Disabilities Education Act (IDEA) established a substantive right to free appropriate public education (FAPE) for children with special needs. Since that time, the right to FAPE has primarily been defined by - and enforced through - the IDEA's robust set of procedural safeguards and avenues for private enforcement. However, the Act's emphasis on procedure over substance has prevented the realization of meaningful educational programming for a significant number of special needs students. This Note illustrates the fundamental tension between the IDEA's substantive and procedural goals by contrasting the legislative and judicial vision of the IDEA with the current state of special education in rural public schools. Part II gives a general overview of frameworks for policy implementation. Part III provides a background in the evolution of special education law, with a focus on the role that courts have played in the development of special education policy. Part IV argues against the IDEA's proceduralist approach by demonstrating how this approach fails to account for the challenges faced by rural students at every stage of the special education process, including eligibility for special education, the formulation and enforcement of individualized education plans, and the provision of feasible alternatives to students' initial public school placement. Finally, Part V argues that the current framework for the provision of special education should be modified to include more effective means for enforcing students' rights and should incorporate the inclusive schools approach, which allows for a more substantive, collaborative, and holistic approach to providing FAPE. A CRITIQUE OF CONSUMER ADVOCACY AGAINST THE RESTATEMENT OF THE LAW OF CONSUMER CON TRA CTS .........................................................................................49 In May 2019, the American Law Institute proposed adopting a Restatement of the Law of Consumer Contracts. In it, the Restatement's Reporters suggested a grand bargain, which removed the requirement that consumers meaningfully assent to contractual terms and compensated for this by adding teeth to ex post remedies already available to consumers. The proposed Restatement drew immense criticism from consumer advocates, who argued both that meaningful assent was not disappearing in the common law, and that the ex post remedies did not go far enough to cure consumer harms. In the wake of this critique, the draft was shelved for further consideration. This Note argues that consumer advocates' approach to critiquing the Restatement is misguided. Contrary to the position of consumer advocates, the Reporters were fundamentally correct in identifying the gradual demise of assent as a reality in consumer contracts. However, this Note acknowledges that ex post review procedures, such as the application of the unconscionability doctrine, are inadequate mechanisms for redressing consumer harm. Instead, this Note argues that consumer groups are better served by focusing on ex ante regulation of contract design, which would ensure that consumers are presented

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