Reichardt v. Flynn

ELDRIDGE, J.

We granted a petition for a writ of certiorari in this case to determine whether an absolute privilege defense applies to a defamation action involving communications made by students and parents to public school authorities about the perceived misconduct of a public school teacher and coach.

I.

Christopher A. Flynn was employed in the Montgomery County public school system as a teacher since 1989 and as a high school track and cross-country coach from 1990 to 1998. From the 1994 school year, until the time of the petitioners’ allegations, Flynn was Walt Whitman High School’s only coeducational cross-country track team coach.

Petitioners, Joanna Zuercher and Claire White-Crane, joined the cross-country track team as high school freshmen in 1995. About 2 years later, on January 12, 1998, both students and their parents met with Walt Whitman High School Principal, Dr. Jerome Marco, to express their concerns regarding Flynn’s behavior as a coach. According to the girls, their primary concerns related to alleged improper sexual comments made by Flynn and their perception that Flynn was more interested in coaching the male runners than the female *363runners. The girls alleged that Flynn’s conduct appeared contrary to the school system’s written policies (titled: “Nondiscrimination;” “Gender Equity;” and “Sexual Harassment”) which promised gender equity and an environment free from discrimination and sexual harassment. Joanna and Claire also wrote to other officials of the Montgomery County public school system about Flynn’s alleged misconduct.1

That same afternoon, Dr. Marco met with Flynn and informed him of the allegations, which Flynn denied. Later that evening, Dr. Marco decided to place Flynn on leave with pay from both his teaching and coaching positions beginning the next day. Two days later, on January 15, 1998, Flynn was formally suspended with pay by the Montgomery County Superintendent of Schools, Paul Vance, while the school system’s Department of Personnel Services conducted a confidential investigation. Flynn remained suspended until May 11, 1998, when he was placed in a non-teaching position.

During the investigation, the school system personnel interviewed and received written statements regarding Flynn’s conduct from more than 20 students. Flynn was able to obtain these statements from the school system’s personnel during its investigation. In addition, Flynn and his counsel were given the opportunity to respond to all statements submitted during the investigation. Neither Flynn nor his counsel chose to do so.

Upon the conclusion of the investigation in July 1998, the School Superintendent issued a written reprimand to Flynn *364for actions that showed different and unequal treatment of girls on the Walt Whitman High School cross-country track team. The Superintendent also denied Flynn the opportunity to coach any Montgomery County public school athletic teams for one year beginning July 1, 1998, barred Flynn from being a teacher at Walt Whitman High School, and required Flynn to participate in a gender anti-discrimination education course. Walt Whitman High School also replaced Flynn with two cross-country track coaches, one for the boys’ team and one for the girls’ team.

Flynn did not attempt to appeal any of the Superintendent’s actions to the Montgomery County Board of Education or to the Maryland State Board of Education pursuant to Maryland Code (1978, 2001 Repl.Vol., 2002 Supp.), § 4-205(c) of the Education Article, or pursuant to regulations of the Montgomery County Board of Education. Flynn did file a grievance against the Montgomery County public school system pursuant to the collective bargaining agreement between the school system and the union representing teachers. An American Arbitration Association hearing was commenced but never completed because Flynn withdrew his grievance.

In January 1999, Flynn filed, in the Circuit Court for Montgomery County, this defamation action against the two students, Joanna Zuercher and Claire White-Crane, and their parents, Glenn Reichardt,'JoAnn Zuercher, Donald Crane and Diana White-Crane. In his complaint, Flynn alleged that the students and their parents defamed him by fabricating and communicating to Dr. Marco and other public school officials false and malicious allegations of sexual abuse, sexual harassment, and sex discrimination by Flynn against female athletes on the Walt Whitman cross-country track team. Flynn asserted that the girls made these false statements in order to have Flynn removed as their coach and to obtain a separate coach for the female runners on the cross-country team. Flynn alleged that these defamatory statements led to his transfer from Walt Whitman High School and to the loss of his coaching position. In a second count, Flynn alleged tor*365tious interference with the economic relationship between Flynn and the public school system.

In response, the petitioners moved to dismiss the complaint. The Circuit Court for Montgomery County granted the Motion to Dismiss, with prejudice, on the ground that the petitioners’ communications with the public school system officials about Flynn’s alleged misconduct were protected by an absolute privilege. Flynn took an appeal, challenging only the dismissal of the defamation action. He did not, on appeal, contest the dismissal of the count charging tortious interference with economic relationship.

The Court of Special Appeals reversed, holding that the statements in question were not absolutely privileged. Flynn v. Reichardt, 131 Md.App. 386, 749 A.2d 197 (2000). The Court of Special Appeals initially acknowledged that this Court had adopted “the common law rule of absolute privilege in which a person is protected from liability for defamation for testimony given as a witness in a judicial proceeding,” and the intermediate appellate court pointed to “Maryland’s broad view of the privilege, which includes administrative and other quasi-judicial proceedings.” Flynn v. Reichardt, supra, 131 Md.App. at 392, 749 A.2d at 201. The Court of Special Appeals stated that, under Gersh v. Ambrose, 291 Md. 188, 197, 434 A.2d 547, 552 (1981), the applicability of the absolute privilege in administrative proceedings depended in part upon the “adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.” The Court of Special Appeals then held that adequate procedural safeguards were not present in this case because, in the appellate court’s view, Flynn was not entitled to a hearing and he was not entitled to any administrative appeal from the Superintendent’s adverse actions. Flynn, 131 Md.App. at 397-402, 749 A.2d at 203-206.2

*366The students and their parents filed in this Court a petition for a writ of certiorari which we granted, Reichardt v. Flynn, 359 Md. 668, 755 A.2d 1139 (2000). Flynn did not file a cross-petition for a writ of certiorari.

The petitioners argue that, under this Court’s decisions, the Circuit Court correctly held that absolute privilege barred the action. The petitioners further argue that the Court of Special Appeals erred in holding that Flynn had no right to appeal the Superintendent’s actions. Flynn defends the Court of Special Appeals’ holding that he had no right to appeal the Superintendent’s action. He further argues that petitioners should be entitled only to a qualified privilege. Neither side has raised any state or federal constitutional issues in this case, and neither side has argued that any of this Court’s decisions should be overruled.

II.

A.

More than 100 years ago, this Court in Hunckel v. Voneiff, 69 Md. 179, 14 A. 500 (1888), after reviewing Maryland’s history regarding the matter, numerous English cases, and cases in other states, held that an absolute privilege applies to the statements of a witness in a judicial proceeding and that no libel or slander action based upon such statements can be maintained. Judge Miller for the Court explained (69 Md. at 193, 14 A. at 504):

“A different view as to the extent of the privilege has been taken by the courts of many of the States, and it may be conceded that the weight of authority in this country is in favor of a much greater restriction upon the privilege than is sanctioned by the English decisions. But we are not controlled by any decision of our own courts, and are at liberty to settle the law for this State according to our best *367judgment. After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down.”

See also Bartlett v. Christhilf, 69 Md. 219, 223-227, 14 A. 518, 519-520 (1888).

The absolute privilege for statements made in judicial proceedings has been reaffirmed by this Court on numerous occasions. In Schaub v. O’Ferrall, 116 Md. 131, 81 A. 789 (1911), for example, the plaintiff brought a defamation action against a witness and her lawyer in a prior divorce action, alleging that the defendants in the divorce action maliciously conspired to present perjured testimony which injured the plaintiff. In holding that a demurrer to the declaration was properly sustained on the ground of absolute privilege, Judge Pattison for the Court, 116 Md. at 138, 81 A. at 792, quoting Dawkins v. Rokeby, [1873] L.R. 8 Q.B. 255, explained:

“But the principle we apprehend is, that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.”

The Schaub opinion went on to hold that the privilege is not “ ‘affected by the relevancy or irrelevancy of what [the witness] says,’ ” and that the privilege is not defeated by alleging that the defamation was “ ‘done by and through a conspiracy of several.’ ” 116 Md. at 138-139, 81 A. at 792.

This Court, in an opinion by Judge Cole, again reviewed the issue in Korb v. Kowaleviocz, 285 Md. 699, 704, 402 A.2d 897, 899 (1979), stating: “We shall, however, apply the rule of Hunckel and Schaub, that in Maryland the testimony of a witness in a judicial proceeding is unconditionally privileged.”

In Adams v. Peck, 288 Md. 1, 4, 415 A.2d 292, 294 (1980), with regard to an allegedly defamatory physician’s report to an attorney, this Court held that

“an absolute privilege applies to a defamatory statement published in a document which is prepared for possible use *368in connection with a pending judicial proceeding but which has not been filed in that proceeding.”

Judge Davidson for the Court in Adams reviewed the scope of the privilege as follows (288 Md. at 3-4, 415 A.2d at 293):

“In Maryland, judges, attorneys, parties and witnesses are absolutely privileged to publish defamatory matters during the course of a judicial proceeding. Korb v. Kowaleviocz, 285 Md. 699, 701-04, 402 A.2d 897, 898-99 (1979); Hunckel v. Voneiff, 69 Md. 179, 193, 14 A. 500, 504 (1888); Maulsby v. Reifsnider, 69 Md. 143, 162-64, 14 A. 505, 510-11 (1888). See Kennedy v. Cannon, 229 Md. 92, 97, 182 A.2d 54, 57 (1962) (dicta). See generally Prosser, Law of Torts, § 114 (1971). This absolute privilege protects the person publishing the defamatory statement from liability even if his purpose or motive was malicious, he knew that the statement was false, or his conduct was otherwise unreasonable. Maulsby, 69 Md. at 164, 14 A. at 511. See Kennedy, 229 Md. at 97, 182 A.2d at 57. It extends not only to defamatory statements made in the courtroom during the course of the trial, Korb, 285 Md. at 704, 402 A.2d at 899; Maulsby, 69 Md. at 164, 14 A. at 511, but also to such statements published in documents which have been filed in a judicial proceeding. DiBlasio v. Kolodner, 233 Md. 512, 520-23, 197 A.2d 245, 250-51 (1964) (declaration in prior suit); Bartlett v. Christhilf 69 Md. 219, 227, 14 A. 518, 520 (1888) (petition); Kerpelman v. Bricker, 23 Md.App. 628, 634, 329 A.2d 423, 427 (1974) (letter of complaint to then Grievance Committee of Maryland State Bar Association initiating a ‘judicial proceeding’). See Kennedy, 229 Md. at 97, 182 A.2d at 57.” (Footnote omitted).

The Court in Adams, 288 Md. at 7-8, 415 A.2d at 295, explained why the privilege was applicable to documents prepared for use in judicial proceedings:

“We agree with the expressed underlying rationale for according an absolute privilege, not only to defamatory statements made in court and in documents which have been filed, but also to such statements published in documents which are prepared for use in connection with a *369pending judicial proceeding but which have not been filed. The evaluation and investigation of facts and opinions for the purpose of determining what, if anything, is to be raised or used in pending litigation is as integral a part of the search for truth and therefore of the judicial process as is the presentation of such facts and opinions during the course of the trial, either in filed documents or in the courtroom itself. Such evaluation and investigation, and the documents which these activities generate, are directly related to the pending litigation and occur during the course of the judicial proceeding. The people who engage in these activities and who generate such documents must be able to do so without being hampered by the fear of private suits for defamation. Accordingly, any defamatory statement which appears in a document prepared for possible use in connection with a pending judicial proceeding should be accorded an absolute privilege, regardless of whether the document has been filed.”

See also Keys v. Chrysler Credit Corp., 303 Md. 397, 403-404, 494 A.2d 200, 203 (1985) (“At least since 1888 ... we have recognized the existence of an absolute privilege for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits or other documents directly related to the case. The privilege operates in favor of the judge as well as the witnesses, counsel, and parties to the litigation. Our interpretation of the privilege has consistently been broad and comprehensive in recognition of the sound policy announced in [the cases]”).

In Gersh v. Ambrose, supra, 291 Md. 188, 434 A.2d 547, this Court for the first time addressed the issue of whether the absolute privilege should apply to administrative proceedings. The Court, in an opinion by Judge Cole, again relying upon British authority, held that the privilege should apply to some administrative proceedings.3 We stated, 291 Md. at 197, 434 *370A.2d at 551-552, that the application of the absolute privilege in administrative proceedings

“will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.”

We held that the privilege did not apply to the administrative proceeding in the Gersh case, as the proceeding was substantially “an ordinary open public meeting.” 291 Md. at 196, 434 A.2d at 551. The proceeding did not resemble an adjudicatory administrative proceeding or a contested case administrative proceeding under the Maryland Administrative Procedure Act. See Code (1984, 1999 Repl.Vol.), §§ 10-201 through 10-226 of the State Government Article.

Four years after Gersh v. Ambrose, this Court relied upon that case to hold that the absolute privilege applied to a citizen’s complaint against a deputy sheriff, made to the Harford County Sheriffs Office, under circumstances which are quite analogous to the circumstances in the case at bar. In Miner v. Novotny, 304 Md. 164, 498 A.2d 269 (1985), we pointed out that the brutality complaint against the police officer would be investigated by the law. enforcement agency under the Law-Enforcement Officers Bill of Rights (the “LEOBR”), then codified as Code (1957, 1982 Repl.Vol.), Art. 27, §§ 727-734D, that if the investigation disclosed that there was substance to the complaint, the police officer would be entitled to an adjudicatory hearing before a department hearing board, that if the hearing board determined that the officer was innocent, the matter would terminate, and that if the board found that disciplinary action was appropriate, it would make a recommendation to the head of the police department. Chief Judge Murphy for a unanimous Court in Miner v. Novotny, supra, 304 Md. at 176, 498 A.2d at 274-275, *371explained why the absolute privilege should apply to the citizen’s complaint:

“Our society vests its law-enforcement officers with formidable power, the abuse of which is often extremely detrimental to the public interest. Citizen complaints of such abuses, and the administrative disciplinary procedure which has been developed to investigate these complaints, serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable.
“The viability of a democratic government requires that the channels of communication between citizens and their public officials remain open and unimpeded. Were complaints such as Novotny’s not absolutely privileged, the possibility of incurring the costs and inconvenience associated with defending a defamation suit might well deter a citizen with a legitimate grievance from filing a complaint. We therefore conclude that the possible harm a false brutality complaint may cause to a law-enforcement officer’s reputation, despite the procedural safeguards provided by the LEOBR, is outweighed by the public’s interest in encouraging the filing and investigation of valid complaints.”

If “public school teacher” were substituted for “law-enforcement officer,” the above-quoted passage would be fully applicable in the case at bar.

The Court in Odyniec v. Schneider, 322 Md. 520, 588 A.2d 786 (1991), reaffirmed the opinions in Gersh and Miner, as well as in Adams v. Peck, supra, holding that an examining physician’s statement to a claimant, in connection with a health claims arbitration proceeding, was absolutely privileged. Chief Judge Murphy, again for a unanimous Court, explained the policy underlying this application of absolute privilege (Odyniec v. Schneider, supra, 322 Md. at 534-535, 588 A.2d at 793):

“That Dr. Schneider’s defamatory statement may have been gratuitous, unsolicited, and in part irrelevant to the purpose for which he was employed, and was not made *372during the actual hearing before the arbitration panel, does not defeat the absolute privilege. Whatever Dr. Schneider’s motivation may have been, he made his verbal statement to Ms. Ensor, a party in the then-pending arbitration proceeding, while he was conducting a medical examination of her in preparation for his participation in that proceeding. It was thus made in the course of his participation in that pending proceeding and therefore, without regard to its relevance, the verbal statement is accorded the same absolute privilege as if it had been made by a witness during the arbitration hearing itself.
“The social benefit derived from free and'candid participation by potential witnesses in the arbitration process is essential to achieve the goal of a fair and just resolution of claims of malpractice against health care providers. At the same time, we are mindful of the damage that may be done to a health practitioner’s reputation by a defamatory statement. But balancing the potential harm caused by such statement made during the pendency of the arbitration process against the societal value of maintaining the integrity of the process itself, we accord greater weight to the latter. The strong public policy considerations which led us to accord an absolute privilege in Adams and Miner are equally present in the circumstances of the present case.”

See also Imperial v. Drapeau, 351 Md. 38, 716 A.2d 244 (1998) (reaffirming the decisions in Odyniec and Miner, and holding that the absolute privilege applied to allegedly defamatory letters, complaining about a rescue squad emergency medical technician, which were sent to a congresswoman and a governor, who forwarded the letters to the appropriate local government officials).

B.

The Court of Special Appeals in the present case acknowledged that the “first px-ong” of the Gersh v. Ambrose “test” was met, saying (Flynn v. Reichardt, supra, 131 Md.App. at 394, 749 A.2d at 202):

*373“In this case, the first prong of the Gersh test is clearly met. As the lower court observed, ‘[TJhere is really nothing more important to the core of the well-being of our community, our State and our nation than the public school system.’ It is unquestionably an issue of strong public interest that students and parents should be protected from suit for reporting a teacher’s alleged sexual misconduct.”

The Court of Special Appeals also indicated, in one part of its opinion, that if Flynn had been entitled to appeal the Superintendent’s action, the “second prong” of Gersh v. Ambrose would have been met, as “adequate procedural safeguards are available at the appellate level.” Ibid. As previously mentioned, however, the intermediate appellate court held “that Flynn did not have the opportunity to appeal or request a hearing.” 131 Md.App. at 397, 749 A.2d at 203. We disagree.

Section 4-205(c) of the Education Article of the Maryland Code provides as follows:

“(c) Interpretation of law; controversies and disputes.—
(1) Subject to the authority of the State Board under § 2-205(e) of this article, each county superintendent shall explain the true intent and meaning of:
(1) The school law; and
(ii) The applicable bylaws of the State Board.
(2) Subject to the provisions of § 6-203 and Subtitle 4 of Title 6 of this article and without charge to the parties concerned, each county superintendent shall decide all controversies and disputes that involve:
(i) The rules and regulations of the county board; and
(ii) The proper administration of the county public school system.
(3) A decision of a county superintendent may be appealed to the county board if taken in writing within 30 days after the decision of the county superintendent. The decision may be further appealed to the State Board if taken in writing within 30 days after the decision of the county board.”

*374In this case, after quoting § 4-205(c), the Court of Special Appeals stated (131 Md.App. at 401, 749 A.2d at 206):

“Contrary to appellees’ assertion, § 4-205(c) does not provide a right to appeal any decision by a county superintendent, but rather, only those decisions that explain the true intent and meaning of the school law and the applicable bylaws of the State Board, as well as decisions involving the rules and regulations of the county board and the proper administration of the county public school system. A superintendent’s decision to suspend a teacher during the investigation of a complaint and subsequent decision to reprimand is not provided an appeal pursuant to this section of the Maryland Code.”

The appellate court did not go on to explain why a superintendent’s decision to reprimand a teacher or transfer a teacher to another school because of misconduct is not a decision in a “dispute” involving the “proper administration of the county public school system.”

Under the plain language of the statute, as well as this Court’s opinions, the dispute in this case did involve the proper administration of the school system. Moreover, in light of the regulations concerning nondiscrimination, gender equity, and sexual harassment, previously referred to in this opinion, supra n. 1, the dispute also involved the “rules and regulations of the county board.” Section 4-205(c) broadly covers county superintendents’ decisions on “all controversies and disputes” involving rules and regulations of the county school board, the school law and bylaws of the State Board of Education, and the “proper administration of the county public school system” (emphasis added). It is difficult to imagine any disciplinary action against a teacher or coach, taken by a county superintendent, that would fall outside of the broad scope of the statute.

In Board of Education, Garrett Co. v. Lendo, 295 Md. 55, 453 A.2d 1185 (1982), a public school teacher who also coached was given an “evaluation” that he “needs improvement” on one item relating to coaching after school hours. The evaluation *375was made by the teacher’s principal and later upheld by the local school superintendent. This Court, in holding that the teacher and coach had a right to appeal under § 4-205(c) and that the State Board of Education was required to entertain the appeal under § 4-205(c), traced the history of the statute since its initial enactment in 1916. In an opinion by Judge Marvin Smith, we rejected the State Board of Education’s recent restrictive interpretation that § 4-205(c) required the State Board to hear only those appeals which involved the state “ ‘Education Article or a State Board bylaw,’ ” 295 Md. at 59, 453 A.2d at 1187. The Court pointed out that the statutory “language is plain and unambiguous,” 295 Md. at 63, 453 A.2d at 1189. We stated that the “argument that this [broad interpretation] will place a tremendous workload on the State Board of Education, that the number of appeals will create fiscal problems, and that the county superintendents collectively make hundreds of decisions each day do not override the plain meaning of the statute which it is our duty to interpret. The workload of the State Board and the fiscal implications are problems for the General Assembly.” 295 Md. at 64-65, 453 A.2d at 1190.

For additional cases emphasizing the broad authority of local school boards and the State Board of Education over appeals under § 4-205(c), or under other appellate review provisions in the Education Article, see, e.g., Montgomery County Education Ass’n v. Board of Education, 311 Md. 303, 308-311, 534 A.2d 980, 982-984 (1987); Board of Education for Dorchester County v. Hubbard, 305 Md. 774, 786-792, 506 A.2d 625, 631-634 (1986); Board of Education of Prince George’s County v. Waeldner, 298 Md. 354, 470 A.2d 332 (1984) (an appeal under § 6-202 of the Education Article where a teacher or other professional was dismissed or suspended); Resetar v. State Board of Education, 284 Md. 537, 399 A.2d 225, cert. denied, 444 U.S. 838, 100 S.Ct. 74, 62 L.Ed.2d 49 (1979); Strother v. Howard County Board of Education, 96 Md.App. 99, 623 A.2d 717 (1993).

Under the broad language of § 4-205(c) of the Education Article, and the judicial decisions applying that statute, Flynn *376was entitled to appeal to the Montgomery County Board of Education and, if there unsuccessful, entitled to appeal to the State Board of Education. The regulations of the Montgomery County public school system grant a right to a hearing with respect to appeals under § 4-205(c) of the Education Article. See the Montgomery County Board of Education’s Policy BLB, entitled “Rules of Procedure in Appeals and Hearings.” Flynn had a right to a second appeal to the State Board of Education, a right to a hearing, and a right to judicial review of the State Board’s final administrative decision. . The proceedings before the State Board and the judicial review proceedings are governed by the State Administrative Procedure Act, §§ 10-201 through 10-226 of the State Government Article. See, e.g., § 10-203 of the State Government Article delineating the scope of the “Contested Cases” subtitle of the Administrative Procedure Act; Board of Education of Prince George’s County v. Waeldner, supra, 298 Md. at 363, 470 A.2d at 336; Hunter v. Board of Education, Montgomery County, 292 Md. 481, 489, 439 A.2d 582, 586 (1982); Resetar v. State Board of Education, supra, 284 Md. at 553-554, 399 A.2d at 233-234; Strother v. Howard County Board of Education, supra, 96 Md.App. at 107-110, 623 A.2d at 721-722.

The Court of Special Appeals also indicated that, even if Flynn had been entitled to appeal and obtain hearings before the County Board and the State Board, there would still be inadequate procedural safeguards because the alleged defamation had already occurred in the petitioners’ initial complaint. The intermediate appellate court stated (131 Md.App. at 397, 749 A.2d at 203): “Procedural safeguards that are available only on appeal after adverse action has already been taken fail to minimize the occurrence of defamatory statements, as required by Gersh.” This same situation, however, is going to exist in every case in which a complaint is made about government personnel, and the complaint initiates an administrative proceeding. The Court of Special Appeals’ criticism would be equally applicable to the facts of Miner v. Novotny, supra, 304 Md. 164, 498 A.2d 269, or Imperial v. Drapeau, supra, 351 Md. 38, 716 A.2d 244. In both of those cases, the *377alleged defamation was contained in the initial complaint against the government employee, and the opportunity for a hearing to rebut the defamation came later. In fact, in probably the majority of cases in which this Court has held that an absolute privilege was applicable, the alleged defamation occurred before a hearing or trial could take place at which the defamatory statement could be rebutted. In addition to Miner and Imperial, see, e.g., Odyniec v. Schneider, supra, 322 Md. 520, 588 A.2d 786 (physician’s defamatory statement was made at an examination prior to the health claims arbitration hearing); Keys v. Chrysler Credit Corp., supra, 303 Md. 397, 494 A.2d 200 (defamation contained in a writ of garnishment); Adams v. Peck, supra, 288 Md. 1, 415 A.2d 292 (defamatory statement was made in a pre-trial report to an attorney).

The administrative proceedings and appeals that were available to Flynn were much more extensive than most administrative proceedings in a non-public education matter. He was entitled to healings, two levels of administrative appeals, and judicial review.4 In principle, this case is indistinguishable from Miner v. Novotny, supra, 304 Md. 164, 498 A.2d 269. The Circuit Court correctly held that Flynn’s defamation action was barred by absolute privilege.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. RESPONDENT TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.

CATHELL, J., dissents.

. In reporting their concerns to Dr. Marco and other officials, the petitioners asserted that they were acting in conformity with the school system's "Sexual Harassment” policy which encourages students to report questionable conduct to the principal. See Regulation "Sexual Harassment,” § III.B.3.a. ("Any . .. student who believes that she or he has been subjected to sexual harassment should report such conduct promptly"); Regulation “Parent Involvement,” § III.A. ("Parent involvement can be defined as efforts which enable parents and families to participate as partners in the educational process at home or in school. Parent involvement efforts should be aimed at developing a climate of open communication, trust, and mutual respect among all members of the school community”).

. Flvnn had not argued in his Court of Special Appeals’ briefs that he had no right to appeal the Superintendent’s action or that he had no right to a hearing on appeal. Instead, he had argued that the administrative appellate proceedings were insufficient to protect him from the *366harm caused by the alleged defamatory statements. (Appellant's brief in the Court of Special Appeals at 14-16; appellant's reply brief in the Court of Special Appeals at 14-15).

. The British decision, Trapp v. Mackie, [1979] 1 All E.R. 489, [1979] 1 W.L.R. 377 (H.L.1978), was a defamation action by a Scottish school headmaster who had been dismissed by the local education authority, *370and who appealed to the Secretary of Stale for Scotland. The alleged defamatory statements were made in proceedings before the Secretary of State. The House of Lords held that the absolute privilege should extend to this administrative proceeding.

. Although not raised by either side, the Circuit Court’s judgment in this case might well be sustainable on the alternative ground that Flynn failed to exhaust his administrative remedies. See McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989).