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Austin mom sues AISD under federal law after state laws limit claims

A mother's fight for her son is now a fight in federal court. The woman claims an Austin Independent School District teacher's aide injured her special needs son by throwing a trash can at him.

A mother’s fight for her son is now a fight in federal court. The woman claims an Austin Independent School District Teacher’s Aide injured her special needs son.

State law protects government entities from spending our tax money fighting most personal injury lawsuits, which is called sovereign immunity.

In schools, it’s to help keep curriculum flowing without fear liability for accidents.

“He is a child who has autism and a mental health challenge. So, those are things that make it extra difficult,” said Nidia Heston, the boy's mother.

Heston trusted Austin Independent School District would understand those difficulties.

Heston said on March 30, 2016 at Clint Small Jr. Middle School, a teacher’s aid crossed the line.

“His special education teaching assistant had thrown a trash can at him,” said Heston.

Heston asked for KVUE to not reveal her son’s identity because he’s still a minor.

Court records and pictures show the boy bleeding, his tooth chipped and his new permanent retainer broken.

Heston rushed her son to the hospital.

“He was crying. He thought he had done something wrong,” said Heston.

She said her son doesn’t process the way most of us do.

This injury was from a teacher's aid throwing a trash can at a student. You can't see much, but it broke his tooth and...

Posted by Erica Proffer on Thursday, July 5, 2018

The boy finally realized what happened after being released from the ER.

The boy became angry, then sick.

“He just laid on the floor in the cold cement,” said Heston.

They went back to the ER and missed the boy’s great-grandfather’s funeral.

“He was supposed to be one of the pallbearers,” said Heston.

“How horrible that is,” said Attorney Martin J. Cirkiel who represents the Hestons.

The Hestons are suing AISD and the teacher’s aid for violations of the Rehabilitation Act and the Americans with Disabilities Act.

“Win, lose or draw, our job is to educate the population, to educate the judiciary and a foster change,” said Cirkiel.

The KVUE Defenders reported last May how school districts are immune to most personal injury lawsuits.

Heston said she didn’t think her case would be heard.

“I probably called 20 attorneys,” said Heston.

Heston claims in the lawsuit she “repeatedly expressed her concern with AISD staff members.”

More than a year before the attack, Heston “requested a 1:1 Paraprofessional” work with her son.

Then, 10 months before the abuse, Heston specifically asked to replace his current aide because she “did not feel (her son) was safe...”

The suit further claims “AISD staff failed to respond to mother’s requests.”

Cirkiel said it would be harder for Heston to seek civil legal action if her son wasn’t part of a protected class.

The teacher’s aid, Jennifer Hardison, pleaded guilty to assault charges. She was sentenced to two years probation.

“I have learned that it is unfortunate that families can’t trust just dropping your kids off at school. We expect kids to be safe,” said Heston.

The KVUE Defenders asked AISD for comment on this case, but the district is on break this week.

In the district’s court-filed response to the lawsuit, AISD didn’t deny Heston’s claims. They challenged the jurisdiction of the lawsuit being filed in federal court and requested the lawsuit be dismissed, claiming Heston didn’t “exhaust all administrative remedies” first.

Heston lists many remedies sought the two years prior to filing the lawsuit.

The case is ongoing.

If you have a tip for the KVUE Defenders to investigate, send an email to defenders@kvue.com or call 512-533-2231.

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