In the case of Goldstein v. CUNY, a Jewish Israeli professor employed at the Borough of Manhattan Community College—within the City University of New York system—filed a suit alleging discrimination and harassment tied to various incidents (beginning in March 2023) connected to the Israeli-Palestinian conflict at BMCC. On the matter now before the court, Judge Jeannette Vargas of the Southern District of New York rejected Goldstein’s claims. The opinion is lengthy; to keep this excerpt manageable I will omit the extended recitation of facts and instead summarize the judge’s factual conclusions embedded in the analysis:
The plaintiff’s charges under Title VII, the NYSHRL, the NYCHRL, and Section 1983 rest largely on expressions of political speech about Israel, Zionism, and the Palestinian conflict that the complaint characterizes as antisemitic. This raises an initial question about how far such expressive conduct—regardless of how personally offensive or hateful it may be to individuals sharing a protected characteristic—can be treated as actionable workplace discrimination or harassment under federal or state anti-discrimination laws.
Title VII bars harassment that is so severe or pervasive as to alter the terms and conditions of an employee’s work and create an abusive environment. Speech that is abusive and offensive can cause a spectrum of psychological harms that make the workplace feel hostile.
Discrimination laws, however, do not provide a blanket “harassment exception” to the First Amendment. The Supreme Court has repeatedly held that expression rooted in bias, hatred, or bigotry falls within First Amendment protection. If there is a bedrock principle under the First Amendment, it is that the government may not suppress the expression of an idea simply because society finds that idea offensive or disagreeable.
Therefore, while non-expressive, physical harassment is squarely outside the reach of free speech, when the core issue is expressive content, anti-discrimination laws intrude into First Amendment territory.
The potential collision between the First Amendment and federal and state anti-discrimination statutes becomes more acute when the speech at issue concerns matters of public interest…. Restricting political speech based on its viewpoint is a tough constitutional challenge and will rarely survive scrutiny. The First Amendment rejects political orthodoxy.
“Given the competing interests at stake, courts have stressed heightened care when applying anti-discrimination laws to areas traditionally safeguarded as speech.” “A statute that burdens protected speech must align with First Amendment principles, whether it does so directly, by prohibiting certain speech outright, or indirectly, by requiring a civil plaintiff to rely on a legal rule that curtails the defendant’s constitutional rights.”
To determine where the boundary lies between protected First Amendment expression and actionable harassment, the reasoning behind workplace harassment prohibitions is instructive. “Government may constitutionally ban speech whose non-expressive aspects foster discrimination. For example, a supervisor’s demand that an employee sleep with them or be fired can be proscribed not because of a message conveyed, but because it facilitates discriminatory conduct.” … “Racial insults or sexual advances targeted at specific individuals in the workplace may be barred on the basis of non-expressive traits, since they do not aim to disseminate a broad message to the public but to intrude upon the targeted listener in a particularly offensive manner.” Consequently, harassment law generally targets conduct and captures speech only when it aligns with the First Amendment’s limits.
When reconciling discrimination claims with the First Amendment, courts have explained that the objective standard for what counts as severe or pervasive distinguishes between speech addressing public concerns reaching the community at large through established channels, and speech that amounts to targeted, personal harassment directed at a specific person or group.
Thus, before the court assesses whether the plaintiff has stated a claim under federal or state anti-discrimination laws, it must first screen out allegations that amount to non-actionable political speech from its analysis.
Applying that test, the court finds that the plaintiff’s discrimination claims based on CUNY’s sponsorship of the Palestinian Solidarity Series are not actionable under federal or state anti-discrimination laws. A poster display, a film screening, and a political discussion are all forms of speech reasonably designed or intended to contribute to ongoing discourse about the Israeli-Palestinian conflict. There is no allegation that any of this speech targeted the plaintiff specifically, nor that the plaintiff or any other individual faced physical threats or intimidation during these events. This speech linked to matters of public and academic concern occurring within a university setting is protected by the First Amendment.
The circulation of a petition by the SJEC Multi-Cultural Center in response to media coverage criticizing the Palestinian Solidarity Series is likewise political speech. According to the complaint, the petition asserted the BMCC SJEC display aimed to educate the community about what it described as the “theft” of Palestinian land and characterized the March 2023 poster exhibit as the “history” of “Zionist settler colonial rule.” A college professor expressing a position on a public matter directed to the college community does not constitute unlawful harassment. Although the complaint contends that the petition mentioned the plaintiff, that too falls within protected speech. The First Amendment grants speakers latitude to critique others—especially figures of authority—in the context of genuine public debate. The complaint alleges that the petition framed the plaintiff’s call for anti-discrimination education about Jewish indigeneity in Israel as an intimidation tactic and labeled the plaintiff’s opposition to the poster display a “Zionist tactic.” Even if the petition did name the plaintiff, it did so in the broader context of comments on a nationally pressing issue directed at the college community. Vigorous exchanges about matters of widespread public concern are squarely within the core of the First Amendment….
The court also cited several related 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), 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 concur with the court that the First Amendment constrains harassment claims in workplace and educational settings, and I broadly find the court’s First Amendment analysis sound, even though I might draw the line in slightly different places personally.
The court dismissed a number of the plaintiff’s claims on First Amendment grounds. Here is the court’s view of the statements and actions it deemed not shielded by the First Amendment:
CUNY’s Investigation into the Plaintiff Following Saleh’s Complaint
The investigation initiated by CUNY after Saleh’s complaint does not amount to a legally cognizable injury. Saleh, who coordinated one of the centers within the BMCC social justice network, argued that an employer’s investigation into a complaint is not a mere optional act; under federal law, an employer’s failure to investigate can expose the employer to liability. Nevertheless, the court concluded that the mere investigation itself cannot be treated as an injury to the plaintiff’s terms and conditions of employment.
Undoubtedly, the plaintiff contends the investigation remained open for fifteen months, yet the complaint does not allege facts showing that this left the plaintiff worse off. For instance, there are no claims that the plaintiff was denied promotions or other career opportunities as a result of the pending inquiry…
CUNY’s Failure to Appoint the Plaintiff to the Advisory Council on Jewish Life
The plaintiff fails to plead facts that would give rise to a plausible inference that he was passed over for advisory council membership because of his Jewish faith or Israeli nationality. He asserts that he was more qualified than those selected, but he does not set forth the criteria for appointment to the Council. He points to others who held lower-level positions at CUNY than himself, yet he does not explain how those qualifications relate to serving on the Council.
Moreover, he has not supplied the religion or nationality of the individuals chosen in his stead. He thus cannot show that those appointed were outside his protected class…
BMCC’s Alleged Failure to Conduct a Good-Faith Investigation into the Plaintiff’s Claims
The plaintiff asserts that CUNY and BMCC did not perform a good-faith, reasonable inquiry into his reports of antisemitic and anti-Israeli conduct. Specifically, he claims there was a delay in investigating or addressing his March 2023 complaint about RateMyProfessor.com reviews, his May 2023 complaints about the petition, and his June 2023 submission regarding the poster exhibit, the April 2023 petition’s distribution, the RateMyProfessor.com comments, and his request for education on Jewish indigeneity in Israel.
The plaintiff does not plausibly allege that CUNY’s failure to investigate produced a concrete, demonstrable harm. Much of the conduct at issue consisted largely of protected First Amendment activity. Consequently, the plaintiff did not suffer a cognizable injury from CUNY and BMCC’s inaction.
The plaintiff offers no explanation for how BMCC and CUNY’s decision not to add education on Jewish indigeneity in Israel, as requested, harmed his terms and conditions of employment. They are not entitled to dictate the university’s curriculum or educational materials….
RateMyProfessor.com Reviews
First Amendment protections do not extend to defamatory statements, and thus discrimination claims can be based on the circulation of false statements about a person. As the plaintiff contends, the RateMyProfessor.com reviews did not occur within a public debate; they were targeted, personal harassment aimed at the plaintiff in his professional capacity and accused him of racism toward Muslim and Palestinian students. The reviews alleged the existence of non-existent classes or courses the plaintiff did not teach.
False allegations of misconduct can contribute to the creation of a hostile work environment. If these comments were sufficiently severe and pervasive to render the plaintiff’s environment hostile, then CUNY and BMCC’s failure to investigate and correct the conditions could be actionable under Title VII.
Although the plaintiff has not shown that a BMCC or CUNY employee authored the RateMyProfessor.com posts, he argues that the universities can be held liable for negligent failure to act once he informed them. An employer may be vicariously liable for harassment by a non-supervisory or non-employee where it acted negligently in failing to provide a reasonable mechanism to complain or to address known harassment with appropriate remedial steps. The court considered whether the employer’s response was timely and proportionate given the circumstances and the level of control it had over the individuals involved. The plaintiff contends that BMCC and CUNY did not respond quickly or effectively to his complaints about the petition or the anonymous RateMyProfessor.com comments. Given the anonymous nature of the posts, the court noted that it was unclear to what extent CUNY could supervise the individuals who posted online.
For purposes of this motion, the court assumed, without deciding, that the plaintiff stated facts sufficient to impute liability to CUNY and BMCC for the reviews. Further, even assuming the liability could be attributed to CUNY or BMCC for the RateMyProfessor.com comments, the court concluded that anonymous third-party posts, when viewed in combination with the other asserted claims, did not collectively reach the level of severe and pervasive harassment. The comments were brief in duration and frequency; the plaintiff was not subject to repeated or targeted epithets based on his religion or national origin. None of the alleged conduct rose to threats or humiliation, leading the court to dismiss the hostile-work-environment claim on this basis.
Karen Rhau of the New York City Law Department, Office of the Corporation Counsel, appears on behalf of CUNY.
