United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4101

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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Superintendent of McNeil School * [UNPUBLISHED]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, *
The Honorable Harry F. Barnes, United States District Judge for the Western 1

District of Arkansas.

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 *

Appellees. *

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 Submitted: September 17, 1998

 Filed: September 22, 1998

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Before WOLLMAN, HANSEN, and KELLY, Circuit Judges. 

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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 Keiths& son Ezekiel suffers from cerebral palsy, cannot speak, and uses a

wheelchair. In their April 1996 lawsuit, the Keiths contended that the McNeil School

District failed to make its programs, services, and activities readily accessible to

disabled individuals, in violation of the Americans with Disabilities Act (ADA), 42

U.S.C. §§ 12101-12213 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 not present evidence from which
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a jury could conclude that the McNeil School District denied Ezekiel access to or

participation in school services, programs, or activities in bad faith or that its school

officials exercised gross misjudgment. See 29 U.S.C. § 794(a) (Rehabilitation Act;

prohibits excluding disabled individuals from services, 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,

626-27 (8th Cir. 1996) (successful ADA claim in context of educational services

requires showing of gross misjudgment or bad faith), cert. denied, 117 S. Ct. 1852

(1997); Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982) (bad faith or gross

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

1012 (1983).

We also review 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

prevailing parties because their lawsuit prompted the school district to upgrade

handicapped parking spaces and remodel bathrooms. Although this court recognizes

the catalyst theory for awarding attorney&s fees, see Little Rock Sch. Dist v. Pulaski

County Special Sch. Dist., No. 1, 17 F.3d 260, 262 & n.1 (8th Cir. 1994), we agree

with the district court that the Keiths did not present sufficient evidence to show that

the school district undertook remedial 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 because 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.