Court Rejects Harassment Lawsuit Over Anti-Israel Speech at CUNY, Largely on First Amendment Grounds
In Goldstein v. CUNY, a Jewish Israeli professor at the Borough of Manhattan Community College—part of the City University of New York system—sued for discrimination and harassment over various actions (which started in Mach 2023) at BMCC that stemmed from the Israeli-Palestinian conflict. Today, Judge Jeannette Vargas (S.D.N.Y.) rejected Goldstein's claim; the opinion is long, and to keep the excerpt manageable I will exclude the long statement of facts, and rely on the judge's account of the facts within the analysis:
Plaintiff's claims under Title VII, the NYSHRL, the NYCHRL, and Section 1983 are largely premised upon expressions of political speech regarding Israel, Zionism, and the Palestinian conflict that the [Complaint] characterizes as antisemitic. This raises a preliminary question as to what extent such expressive conduct, no matter how personally offensive or hateful to individuals based upon a protected characteristic, can be actionable as workplace discrimination or harassment under federal or state antidiscrimination laws.
Title VII prohibits "harassment so severe or pervasive as 'to alter the conditions of the victim's employment and create an abusive working environment.'" Abusive and offensive speech, no less than abusive conduct, can undoubtedly cause a multitude of psychic harms that would render a workplace hostile.
Antidiscrimination laws do not create a categorical "'harassment exception' to the First Amendment's free speech clause," however. "[T]he Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection." "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Accordingly, while there is "no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," it is equally clear that "[w]here pure expression is involved, anti-discrimination law steers into the territory of the First Amendment."
The potential conflict between the First Amendment and federal and state antidiscrimination laws is heightened when the offensive speech concerns matters of public concern…. [R]estriction of political speech based upon the viewpoint expressed will almost never pass constitutional muster. The First Amendment abhors political orthodoxy….
"In light of the competing interests … , courts have emphasized the need to exercise special caution when applying anti-discrimination law to matters involving traditionally protected areas of speech." "A statute that burdens protected speech must comport with the First Amendment regardless of whether it does so directly, such as by prohibiting certain speech outright, or indirectly, such as by requiring a court adjudicating a civil lawsuit between private parties to apply a rule of law that has the effect of imposing invalid restrictions on the defendant's constitutional freedom of speech."
In determining where the line between protected speech under the First Amendment and actionable harassment falls, the reasoning behind the prohibition on harassment in the workplace is instructive. "[G]overnment may constitutionally prohibit speech whose non-expressive qualities promote discrimination. For example, a supervisor's statement 'sleep with me or you're fired' may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct." … "[R]acial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, as they do not 'seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way.'" Thus, "[h]arassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment."
When reconciling discrimination claims with the First Amendment, courts have explained that "the objective measure of what conduct is severe or pervasive … will distinguish between speech on matters of public concern directed to the community at large through generally accepted methods of communication, and speech that constitutes targeted, personal harassment aimed at a particular individual or individuals." …
Accordingly, before the Court considers whether Plaintiff has stated a claim under federal or state antidiscrimination laws, the Court must first filter out all "allegations deemed to be non-actionable political speech" from its analysis.
Applying this test, the Court holds that Plaintiff's discrimination claims based upon CUNY's sponsorship of the Palestinian Solidarity Series are not actionable under either federal or state antidiscrimination laws. A poster exhibit, the screening of a film, and a political discussion are all instances of speech that are "reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict." There is no allegation that any of this speech was directed specifically at Plaintiff, or any other Jewish student or CUNY employee. Nor is there any allegation that Plaintiff or any other individual was physically threatened or intimidated during these events. This speech on matters of public and academic concern occurring in a university setting is protected under the First Amendment.
The SJEC Multi-Cultural Center's circulation of a petition … in response to the media coverage criticizing the Palestinian Solidarity Series is likewise political speech. According to the [Complaint], the petition stated that the BMCC SJEC display was intended to educate the community regarding the "theft" of Palestinian land. It described the March 2023 poster exhibit as the "history" of "Zionist settler colonial rule." "[A] college professor's expression on a matter of public concern, directed to the college community, [does not] constitute unlawful harassment …."
Although the [Complaint] alleges that the petition mentions Plaintiff, this too is protected free speech. "[T]he First Amendment provides speakers with latitude to criticize others, particularly authority figures, in the context of a genuine public debate." The [Complaint] alleges that the petition described "Plaintiff's request for anti-discrimination education on Jewish indigeneity in Israel" as part of an "intimidation tactic." The petition also described Plaintiff's opposition to the poster display as a "Zionist tactic." Even if the petition explicitly referred to Plaintiff by name, it did so in the context of commenting on statements made by Plaintiff on a topic of urgent national debate, directed to the college community at large. Robust exchanges on matters of widespread public concern fall within the heartland of the First Amendment….
The court cited similar recent decisions, including Gartenberg v. Cooper Union(S.D.N.Y. 2025), Landau v. Corp. of Haverford College (E.D. Pa. 2025), Garrett v. CUNY(S.D.N.Y. 2025), and Kopmar v. Ass'n of Legal Aid Attorneys (S.D.N.Y. 2025), and Stand with Us Center for Legal Justice v. MIT (1st Cir. 2025). I agree with the court that the First Amendment limits workplace and educational harassment claims, and generally think the court's First Amendment analysis is sound, even if I would personally draw the lines slightly differently.
The court dismissed many of plaintiff's claims on First Amendment grounds. Here is what the court had to say as to the statements and actions that it found weren't immunized by the First Amendment:
CUNY's Investigation into Plaintiff Following Defendant Saleh's Complaint …
CUNY's investigation into Plaintiff arising from Saleh's complaint does not result in a cognizable harm. [Saleh was the Coordinator of the Multi-Cultural Center, one of the Social Justice and Equity Center centers. -EV]]. Because "an employer's investigation of a … complaint is not a gratuitous or optional undertaking" but rather "under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer," the investigation into Plaintiff cannot in itself constitute an "injury in employment terms or conditions."
True, Plaintiff alleges the investigation was needlessly kept open for 15 months. Yet the Complaint fails to allege any facts indicating that this made Plaintiff "worse off." There are no allegations, for example, that plausibly suggest that Plaintiff was denied promotions or other career opportunities as a result of the pending investigation….
CUNY's Failure to Appoint Plaintiff to the Advisory Council on Jewish Life
Plaintiff fails to allege facts that directly or indirectly give rise to a plausible inference that he was not appointed to the Advisory Council at least in part because of his Jewish religion or Israeli national origin. Plaintiff conclusorily asserts that he "was and is more qualified to serve on Defendant's Advisory Council on Jewish Life" than those who were chosen.
Yet he does not outline the qualifications for a position on the Advisory Council. For example, he alleges that certain individuals appointed to the Advisory Council held "lower level positions at CUNY" than did Plaintiff, but nowhere explains how this correlates with the qualifications to serve on the Advisory Council.
Moreover, Plaintiff has not provided the religion or nationality of those chosen for the Advisory Council in his stead. He thus fails to establish that any of the individuals who were appointed were "outside his protected class." …
BMCC's Alleged Failure to Conduct a Good Faith Investigation into Plaintiff's Claims
Plaintiff alleges that CUNY and BMCC failed to conduct a good faith reasonable investigation of Plaintiff's reports of antisemitic, anti-Israeli treatment. Specifically, he claims that they did not timely investigate or provide redress for his March 2023 complaint regarding the RateMyProfessor.com reviews; his May 2023 complaints regarding the petition; or his June 2023 submission to the online portal regarding the poster exhibit, the circulation of the April 2023 petition, the RateMyProfessor.com comments, and his unanswered request for education on Jewish indigeneity in Israel….
Plaintiff does not plausibly allege that CUNY's failure to investigate his claim resulted in a "demonstrable harm." The conduct that was the subject of Plaintiff's complaints was largely protected First Amendment activity. Plaintiff thus did not suffer any cognizable harm from CUNY and BMCC's inaction.
Plaintiff offers no explanation as to how BMCC and CUNY's decision not to provide education on Jewish indigeneity in Israel, as requested by Plaintiff, caused Plaintiff to suffer an injury to the terms and conditions of his employment. Certainly, Plaintiff is not entitled to dictate to CUNY and BMCC the contents of its course offerings or educational materials….
[RateMyProfessor.com Reviews]
{First Amendment protection does not extend to speech that is defamatory, and thus discrimination claims can be premised upon the circulation of false statements regarding an individual…. As alleged in the TAC, {[t]he RateMyProfessor.com reviews} did not take place in the context of a public debate, but were "targeted, personal harassment aimed at a particular individual." The reviews purported to provide commentary on Plaintiff in his role as a professor and accused him of exhibiting racism towards Muslim and Palestinian students. In doing so, they referenced non-existent classes or classes that Plaintiff did not teach.
False accusations of misconduct can permissibly be considered as contributing to the creation of a hostile work environment.} If these comments were sufficiently severe and pervasive to create a hostile work environment for Plaintiff, then CUNY and BMCC's failure to adequately investigate and remediate his working conditions could have resulted in an injury actionable under Title VII.
{Although Plaintiff has not alleged any facts from which it can plausibly be inferred that it was a BMCC or CUNY employee who left the RateMyProfessor.com comments, Plaintiff argues that BMCC and CUNY can be held liable for their negligent failure to take appropriate action once he alerted the administration. Liability can be imputed to an employer for harassment committed by a non-supervisory employee or a non-employee if the employer acted negligently by failing "to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." "In determining the appropriateness of an employer's response, we look to whether the response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility the employer has" over the behavior of the responsible individual. Plaintiff argues that BMCC and CUNY did not act immediately or timely in response to his complaints relating to the petition or the anonymous RateMyProfessor.com comments. In light of the anonymous nature of the comments, it is unclear to what extent CUNY had any level of control over the individuals who posted online.
For purposes of this motion, the Court assumes, without deciding, that Plaintiff has pleaded facts sufficient to impute liability to CUNY and BMCC for the reviews.} [And a]ssuming arguendo that liability for the RateMyProfessor.com comments can be imputed to CUNY or BMCC, … anonymous comments on a third-party website, even when coupled with the other actionable allegations, do not cumulatively rise to the level of severe and pervasive. They were of limited duration and frequency. Plaintiff was not subject to epithets based on his religion or national origin, let alone a "steady barrage" of such comments. None of the alleged conduct rose to the level of physical threat or humiliation. The hostile work environment claim is therefore dismissed.
Karen Rhau (NYC Law Department, Office of the Corporation Counsel) represents CUNY.