## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4101

___________ Stephen Keith; Susan Keith, * Individually and as parents and * next friends of Gabriel Keith, * Emmanuel Keith and Ezekiel Keith, * minors, * * Appellants, * * v. * * Jimmy Allen, Individually and as * Superintendent of McNeil School * Appeal from the United States District No. 37; James Berry, * District Court for the Individually and as former * Western District of Arkansas. Superintendent of McNeil School * [UNPUBLISHED] District No. 37; Don Hamilton, * Individually and as Principal of * McNeil School; Donna Huffman, * Individually; Leroy Gulley, * Individually; Hurlen Cross, * Individually and as Director of the * McNeil School District No. 37; John * Jackson, Individually and as Director * of the McNeil School District No. 37; * Kay Sharp, Individually and as * Director of the McNeil School * District No. 37; Bill Givens, * Individually and as Director of the * McNeil School District No. 37; Lee * Smith, Individually and as Director of * the McNeil School District No. 37, *TheHonorable Harry F. Barnes, United States District Judge for the Western 1 District of Arkansas. -2- * Appellees. *

___________ Submitted: September 17, 1998 Filed: September 22, 1998

___________ Before WOLLMAN, HANSEN, and KELLY, Circuit Judges.

___________ PER CURIAM. Stephen and Susan Keith appeal the district court & s adverse grant of judgment 1
as a matter of law in their disability discrimination suit and the district court & s subsequent denial of their motion for attorney & s fees . For the reasons discussed below, we affirm the judgment of the district court.

The Ke iths & son Ezekiel suffers from cerebral palsy, cannot speak, and uses a wheelchair. In their April 1996 lawsuit, the Keiths contended that the McNeil School Dis trict failed to make its programs, services, and activities readily accessible t o disable dindividuals, in violation of the Americans with Disabilities Act (ADA), 4 2 U.S.C. §§ 12101-1221 3 and section 504 of the Rehabilitation Act of 1983, 29 U.S.C. §§ 701-796i.

We review de novo a grant of judgment as a matter of law. See Sip-Top, Inc.
v. Ekco Group, Inc. , 86 F.3d 827, 830 (8th Cir. 1996) (standard of review). Having reviewed the

record, we agree that judgment as a matter of law was warranted on the ADA and Rehabilitation Act claims, as the Keiths did n ot present evidence from which-3-

a jury c ould conclude that the McNeil School District denied Ezekiel access to o r partic ipationin school services, programs, or activities in bad faith or that its schoo l officia ls exercised gross misjudgment. See 29 U.S.C. § 794(a) (Rehabilitation Act ; prohibits excluding disabled individuals from service s, programs, or activities of public entity); 42 U.S. C. § 12132 (ADA; same); Fed. R. Civ. P. 50(a) (standard for granting judgment as matter of law); Hoekstra v. Independent Sch. Dist. No. 283 , 103 F.3d 624, 626-2 7 (8th Cir. 1996) (successful ADA claim in context of educational service s re quires showing of gross misjudgment or bad faith), cert. denied , 117 S. Ct. 185 2 (1997); Monahan v. Nebraska , 687 F.2d 1164, 1171 (8th Cir. 1982) (bad faith or gross mi sjudgment

standard applies to Rehabilitation Act claims), cert. denied , 460 U.S

. 1012 (1983).

We alsoreview de novo a district court & s determination of whether a litigant is a prevailing party and thus entitled to attorney & s fees. See St. Louis Fire Fighters Ass & n v. City of St. Louis , 96 F.3d 323, 330 (8th Cir. 1996). The Keiths argue that they are preva ilingparties because their lawsuit prompted the school district to upgrad e handicapped parking spaces and remodel bathrooms. Although this court recognizes the cata lyst theory for awarding attorney & s fees, see Little Rock Sch. Dist v. Pulaski County Sp ecial Sch. Dist., No. 1 , 17 F.3d 260, 262 & n.1 (8th Cir. 1994), we agre e withthe district court that the Keiths did not present sufficient evidence to show that the school district undertook remedi al measures in response to the Keiths & lawsuit, see Pottgen v. Missouri State High Sch. Activities Ass & n , 103 F.3d 720, 723 ( 8th Cir. 1997) (plaintiff & s catalyst theory lacked merit bec ause plaintiff did not show how his suit was catalyst for defendant & s voluntary compliance).
The judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.