                    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Superintendent of McNeil School          *      [UNPUBLISHED]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,       *
                                         *
             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&s1 adverse grant of judgment
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

      1
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

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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.

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