dissenting:

I cannot agree that the State of Hawaii has violated its obligation to blind people under federal law. Because the plaintiffs have failed to offer any evidence to satisfy two of the three elements required to be proven by the plain language of the statute at issue in this case, I respectfully dissent.

I

To state a claim under section 202 of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 , a plaintiff bears the burden of proving: (1) that he is a “qualified individual with a disability” as defined in section 12131(2); (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiffs disability. Tyler v. City of Manhattan, 857 F.Supp. 800, 817 (D.Kan.1994) (citation omitted); Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986, 990 (S.D.Fla.1994).

As to the first requirement, the blind plaintiffs in this case are clearly disabled. However, it is not dear whether they meet the “qualified” prong because, as noted infra, they have failed to identify a specific program, activity, or benefit for which they are “qualified,” i.e. for which they “meet[] the essential eligibility requirements.” 42 U.S.C. *1487 § 12131 (2). Unless the plaintiffs identify such a program, activity, or benefit, this court cannot even determine what the “essential eligibility requirements” are, much less whether the plaintiffs have met them. 1 I need not address this first requirement, however, because in my view the plaintiffs have clearly failed to raise an issue of material fact with regard to either of the last two elements. These two requirements will be discussed in turn. 2

II

A

The record discloses that the plaintiffs have failed to offer any evidence whatsoever that Hawaii’s quarantine has excluded them from participation in, or denied them the benefits of, any specific public entity’s services, programs, or activities. As the district court noted, Hawaii’s quarantine is a public health measure, and it does not provide any “benefits” to which the plaintiffs could be denied. In addition, to the extent that the quarantine is a “service, program or activity,” it is clear that they have been allowed to “participate.” The plaintiffs therefore must prove that they have been excluded from, or denied the benefits of, some particular state service, program or activity other than the quarantine.

In opposition to the defendants’ summary judgment motion, the plaintiffs filed at least 15 declarations in the district court. One searches these declarations in vain for even a solitary reference to. a specific program, activity, or service to which the plaintiffs have been denied access or benefits. The plaintiffs have thus failed to meet their burden of proof.- See Lincoln Cercpac v. Health and Hosps. Corp., 920 F.Supp. 488, 498 (S.D.N.Y. Mar. 21, 1996) (“[PJlaintiffs here have not defined a service available to the non-disabled that they are being denied by reason of their disability. Accordingly, we find plaintiffs have no substantial likelihood of success on their ADA claims.”); Casey v. Lewis, 834 F.Supp. 1569, 1585 (D.Ariz.1993) (plaintiffs failed to establish Rehabilitation Act claim in part because they “did not identify particular programs from which any of the handicapped inmates were excluded because of their handicaps”).

In spite of plaintiffs’ failure of proof, the majority concludes that “[t]he evidence produced in support of the parties’ motions for summary judgment established that the state’s quarantine requirement denies visually-impaired persons the ability to make meaningful use of services the state provides.” Op. at 1482. There are at least two immediate problems with this conclusion.

First, undoubtedly because the plaintiffs have failed to do so, the majority does not identify a particular state service, program, or activity to which the plaintiffs have been denied benefits or access. Instead, the opinion makes only a broad reference to “a variety of public services, such as public transportation, public parks, government buildings and facilities, and tourist attractions....” Op. at 1485. The court’s conclusion that the blind have been denied access to such services is simply unsupported by the record. 3

*1488 Second, the plaintiffs’ claims are defeated by their own evidence. In the extremely limited section of their appellate brief addressing this issue, the plaintiffs list a broad range of public programs geared specifically to the blind. After listing these services, they offer only the following argument:

(Emphasis added.)

Plaintiffs’ entire argument on appeal, therefore, boils down to the assertion that the quarantine, by depriving them of access to their guide dogs, deprives them of the ability to travel, and because they cannot travel they are excluded from virtually all public programs provided to the blind. 4 Even assuming that the plaintiffs may use such an argument to overcome their otherwise clear obligation to identify a particular program from which they have been excluded or denied benefits, it is entirely undermined by their admissions that they have traveled, albeit at times with difficulty, without guide dogs. 5 Accordingly, their only argument on this point, i.e. that the quarantine excludes them from participation in or denies them the benefits of all state services, programs, or activities provided to the blind because it makes them unable to travel, simply fails.

I am not unmindful of the difficulties which the plaintiffs may encounter when traveling without their guide dogs. However, the plaintiffs have (1) faded to offer any evidence establishing that they have been denied the benefits of, or participation in, any particular state program, service, or activity, and (2) failed to offer evidence supporting their novel alternative argument that they have been excluded from all such programs because the quarantine prohibits them from traveling. As such, I have no choice but to conclude that they have failed to raise an issue of material fact regarding whether the quarantine violates Title II of the ADA

B

Plaintiffs have also failed to offer evidence establishing that they have suffered “discrimination” within the meaning of the statute. The Hawaii quarantine is a facially-neutral public health measure of. general applicability. Nothing in the legislation or regulations enacting the- quarantine creates any classification whatsoever; there is thus no facial discrimination.

*1489 The majority, relying in large part on Alexander v. Choate, 469 U.S. 287 , 105 S.Ct. 712 , 83 L.Ed.2d 661 (1985), states that “[i]t is ... clear that Congress intended the ADA to cover at least some so-called disparate impact eases of discrimination-” Op. at

1483. Applying disparate impact analysis, the majority concludes that “Hawaii’s quarantine requirement is a policy, practice or procedure which discriminates against visually-impaired individuals by denying them meaningful access to state services, programs or activities in violation of the ADA” Op. at 1485. 6

I respectfully disagree both with the majority’s application of Choate and also with its finding of discrimination in this ease. In Choate , the State of Tennessee proposed to cut back the number of annual inpatient hospital days that the state Medicaid program would pay on behalf of Medicaid recipients. Disabled recipients alleged that the proposal would have a disproportionate effect on the disabled, and that it therefore discriminated against them in violation of section 504 of the Rehabilitation Act. The Supreme Court stated that “[wjhile we reject the boundless notion that all disparate-impact showings constitute prima facie cases under section 504, we assume without deciding that section 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.” Id. at 299 , 105 S.Ct. at 719 (emphasis added). Proceeding from that assumption, the Court then stated that “[t]o determine which disparate impacts § 504 might make actionable, the proper starting point is Southeastern Community College v. Davis, 442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979).” Id. at 299-300, 105 S.Ct. at 719-20 . “The balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Id. at 301, 105 S.Ct. at 720 .

The Court then examined whether the proposed program would deny the disabled “meaningful access” to Medicaid services in Tennessee, and concluded that it would not;

Id. at 309 , 105 S.Ct. at 724 .

Rather than supporting the majority’s position, the Court’s analysis suggests that the ADA does not reach the claim asserted in this ease. The quarantine is neutral on its face, and is not alleged to rest on a discriminatory motive. Moreover, as explained infra, the plaintiffs have failed to provide any evidence showing that the quarantine excludes the blind from any public benefit. I therefore disagree with the majority’s conclusion that Choate supports the proposition that the ADA reaches the plaintiffs’ claim.

It is worth noting that Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir.1996) also suggests that the ADA does not apply here. In Patton , the plaintiff claimed that a Kansas law placing a cap on punitive damage awards was void as superseded by section 202. Applying Choate , the Tenth Circuit concluded that the ADA did not apply to the claim:

Id. at 1245 (emphasis added) (citations omitted). This reasoning suggests that even if the burden of Hawaii’s quarantine is found to fall disproportionately on the blind (a proposition which I discuss in Part III), the ADA is not violated so long as the blind have equal access to their animals as everyone else. 7 This condition is clearly met here. Accordingly, I am persuaded that the ADA does not reach the plaintiffs’ discrimination claim.

Ill

Even assuming that the plaintiffs have raised an issue of material fact regarding whether they were discriminated against, they have failed to offer evidence showing that any such discrimination occurred “by reason of their disability,” thé remaining hurdle to be overcome.

The ADA defines “disability” in relevant part as “a physical or mental impairment that substantially limits one or more of the major life activities of’ an individual. 42 U.S.C. § 12102 (2)(A). Properly characterized, therefore, the plaintiffs’ disability is their blindness. In order to prevail under Title II, they must therefore show that the quarantine discriminates against them, or denies them access to state benefits, by reason of their blindness. This they have not done.

The primary flaw in the plaintiffs’ argument is the erroneous, implicit assumption that dependence upon a guide dog constitutes a “disability” under Title II. For example, the plaintiff classes in this ease were defined as follows:

(Emphasis added). The members of the plaintiff classes thus have two distinguishing characteristics: (1) they are blind, and (2) they desire to travel with their guide dogs. Even assuming arguendo that the quarantine has a disparate impact on the plaintiffs, it does so only because of the latter characteristic. 8 However, in order to state a claim under Title II, the plaintiffs must show that the disparate impact occurred because of the former characteristic; only the former is a “disability” under Title II.

This conclusion is supported by Flight v. Gloeckler, 68 F.3d 61 (2d Cir.1995). The plaintiff in Flight , who suffered from multiple sclerosis and was restricted to a wheelchair, was a client of the New York State Office of Vocational and Educational Services for Individuals with Disabilities (‘VESID”). The plaintiff decided to purchase a van, and he petitioned VESID for financial assistance to make necessary modifications to the van. VESID’s policies allowed it to spend $10,500 to modify a van for a client who was to able to drive, but only $4,000 if the client planned to be a passenger. VESID found that the plaintiff was too severely disabled to drive, and thus authorized allocation of only $4,000. The plaintiff sued, alleging a violation of both section 504 of the Rehabilitation Act and section 202 of the ADA.

The Second Circuit rejected the plaintiffs claim. After noting that the Rehabilitation Act “does not require all handicapped per *1491 sons to be provided with identical benefits” but “mandates only that services provided nonhandicapped individuals not be denied [to a disabled person] because he is handicapped,” id. at 63-64 (quoting P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990)) (emphasis added), the court stated that “Flight was not denied the additional subsidy ‘solely by reason of ... his disability1 within the meaning of § 504.” Id. at 64. The court noted that “[t]he denial of the increased allowance was not based upon Flight’s classification as a victim of multiple sclerosis, but rather upon the type of modification that he requested.” Id.

In reaching this conclusion, the court rejected a claim similar to the claim implicitly made by the plaintiffs here:

Id. (emphasis in original) (citations omitted). The court thus rejected the plaintiffs Rehabilitation Act claim. Importantly, the court rejected his ADA claim on similar grounds:

Id.

This reasoning is equally applicable here. The plaintiffs’ dependence on their guide dogs is, properly considered, a result of their physical impairment; rather than a physical impairment in its own right. Accordingly, even if the quarantine is found to have a disparate impact on the plaintiffs, it does not do so by reason of their disability.

The fact that the quarantine does not discriminate on the basis of blindness is also borne out by the fact that the record is devoid of any allegation or evidence that the quarantine discriminates against blind people generally. 9 Indeed, the plaintiff class members represent only a tiny portion of the blind; reports in various newspapers 10 indicate that only somewhere between 1-5% of the blind use guide dogs. 11 If the quarantine does, as the plaintiffs allege, discriminate or deny state services by reason of blindness, then all people who are blind could constitute members of the plaintiff class and could assert ADA claims. The fact that the plaintiffs *1492 have chosen to file suit while other blind individuals have not simply points out that the quarantine does nothing by reason of blindness; it affects the plaintiffs only because of their use of guide dogs.

Because the plaintiffs are unable to show that the quarantine discriminates against them by reason of their blindness, they have failed to establish an issue of material fact on an essential element of their claim.

IV

For the foregoing reasons, I would affirm the district court’s grant of summary judgment to the defendants on the plaintiffs’ ADA claim. 12

. To the extent that the plaintiffs claim that they have been denied access to "public transportation” and "public parks,” see ante at 1485, they, like the rest of the general public, clearly meet the "essential eligibility requirements” for receipt of such services.

. Although the district court did not reach the third requirement, its judgment may be affirmed on any grounds supported by the record. Herring v. FDIC, 72 F.3d 762, 764 (9th Cir.1995).

. The majority also improperly relies on regulations which are inapplicable to Title II claims. The majority states that:

The provision relied on by the majorily actually states that:

(Emphasis added). As the district court correctly noted, this provision is simply inapplicable to public entities:

Crowder v. Kitagawa, 842 F.Supp. 1257, 1267 (D.Haw.1994).

. Significantly, plaintiffs do not allege that any particular state "public park," “government building,” or "tourist attraction,” ante at 1485, forbids them irom using a guide dog once that dog successfully passes through quarantine.

. See Declarations of Patricia Blum, ¶ 5 (“I travel to the mainland on business at least 4 times a year. I am put back on a cane and all the stress is back.”); Charles Crawford, ¶ 6 ("On those few occasions where I have had to use a cane instead of the dog, I have had to move much slower with almost’full concentration on how I was getting to where I needed to be.”); Vernon Crowder, ¶ 5 (“For pleasure, I have travelled to Western Europe, Mexico, Canada, and, on two occasions, Hawaii. With the exception of the trips to Hawaii and two or three trips elsewhere, I have always travelled with my guide dog.”) (emphasis added); Stephanie Good, ¶4 ("I have travelled to the mainland of the United States and to Australia without a guide dog.”); Stanley Greenberg, ¶ 3 ("For thirty years, I travelled with a cane and so am able to testify about the difference between travelling with a cane and with a guide dog.”); Jeanne-Marie Moore, ¶ 3 ("Before I ever had a guide dog, I had travelled to Hawaii as a cane user.”); and Judith Weymouth, ¶ 20 ("In April, 1991, I was required to fly to Washington, D.C., to represent the Aloha Council of the Blind. If I had a guide dog, a trip like this would have been a routine thing. Without a guide dog, there was nothing routine about it.”), and ¶ 25 (describing a trip to Australia to pick up a guide dog that was apparently undertaken without a guide dog).

. As explained in Part III supra, the majority's reference to "visually-impaired individuals” is simply too broad; there is no allegation nor evidence that the quarantine affects the vast majority of blind people, i.e., those who do not use guide dogs. Furthermore, as also explained supra, the fact that the quarantine affects the plaintiffs because it limits their use of guide dogs does not discriminate against them "by reason of their disability.”

. Cf. Lincoln Cercpac v. Health and Hosps. Corp., 920 F.Supp. 488, 498 (S.D.N.Y.1996) ("the disabled are not entitled to more public services than the abled receive, even if the disabled need them”) (citing Choate).

. This fact is implicitly acknowledged by the plaintiffs and their supporting amici. For example, the United States argues that "[t]he [district] court also claimed, ignoring the record, that plaintiffs failed to show that they had been denied state services as a result of the quarantine. Plaintiffs, however, submitted affidavits that because the quarantine deprives them of their guide dogs, they are denied meaningful access to almost all state services — services for which they are clearly eligible.” Brief of United States as amicus curiae, at 11 (emphasis added).

. Indeed, Hawaii seems to have made a concerted effort to ensure that state services are available to the blind. See H.R.S. § 347-20, stating that "it is the policy of this State to encourage and enable the blind ... to participate fully in the social and economic life of the State and to engage in remunerative employment.... [T]he blind ... have the sanie right as the able-bodied to the full and free use of the streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places.”

. This court may take judicial notice of adjudicative facts appearing in newspapers. See Fed. R.Evid. 201; Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir.1995); Peters v. Delaware River Port Authority of Pennsylvania and New Jersey, 16 F.3d 1346 , 1356 n. 12 (3d Cir.), cert. denied,-U.S.-, 115 S.Ct. 62 , 130 L.Ed.2d 20 (1994).

. See, e.g., U.S. News & World Report, March 11, 1996 (Vol. 120, No. 10), at 14 (reporting, on the basis of data provided by the American Foundation for the Blind, that 1 percent of blind people use guide dogs); Cathryn Creno, “Experts Hope to Make More Canine Help Available,” The Arizona Republic, July 17, 1994, at FI (reporting that "[ojnly 3 to 5 percent of blind Americans use guide dogs,” and quoting Jim LaMay, executive director of the Arizona Center for the Blind and Visually-Impaired, as stating that “[i]t’s definitely' only a small percentage of the blind that use seeing-eye dogs.”); Laura Randall, "Guide Dogs, a Rare Breed Among Blind,” Chicago Tribune, June 1, 1993, at 8 (reporting that Ed Eames, author of a book about guide dog schools and a column in Dog World magazine, “estimates that only about 1.5 percent of [blind Americans] rely on dogs”); Martha Sherrill, “It’s a Guide Dog's Life,” The Washington Post Magazine, January 13, 1991, at W17 (“There are an estimated 10,-000 guide dogs working in this country used by 5 percent of the blind.”); and Judy Siegel-Itzko-vich, "Guide Dogs, a Blue and White Kind,” The Jerusalem Post, January 5, 1990, at 7 (“In most developed countries, two to three percent of the blind have guide dogs_”).

. In light of the majority’s decision to remand the case for further findings on the issue of “reasonable modifications,” I need not address the plaintiffs' constitutional claims here.