The Ombudsman has many different ways to promote equality and tackle discrimination. In practice the work involves counselling, investigating individual cases, promoting conciliation between the parties, providing training, gathering information, as well as influencing legislation and the practices of the authorities.
Discrimination is treating one person less favourably than others on the basis of a personal characteristic. All human beings are entitled to equal treatment, and discrimination is prohibited by many of our national laws, the Non-discrimination Act, the Criminal Code, as well as international human rights conventions.
Age, origin, nationality, language, religion, belief, opinion, political activity, trade union activity, family relationships, state of health, disability, sexual orientation and other personal characteristics are grounds for discrimination prohibited by the Non-discrimination Act.
In a just and fair society, person-related factors such as disability, sexual orientation or skin colour, should not impact a person’s access to education or services, or their job prospects. Fundamental rights belong to everyone.
The purpose of promoting equality is to prevent discrimination, ensure the de facto equality of all people and remove inequality due to discrimination in the society. The authorities, private parties with public administration duties, education providers and employers are obliged to promote equality in their activities.
Public authorities, private actors performing public administrative functions, education providers and employers must assess and promote equality in their activities and prepare equality promotion plans to promote equality.
Anyone can be discriminated against. Discrimination takes place in different areas of life and in many ways. Discrimination can take place for example in private services, health care, school, renting an apartment or in employment.
When school transport decisions cannot be made on the Basic Education Act alone
One of the goals of the Basic Education Act is to ensure that every student has an equal opportunity to participate in education and develop themselves. Despite the good intentions of this goal, literal adherence to the wording of the law can lead to the sort of discrimination prohibited under the Non-discrimination Act. In such cases, focusing solely on the Basic Education Act is not enough. Instead, municipalities and other education providers must also take into account the obligations of the Non-discrimination Act.
The recently issued Yearbook decision of the Supreme Administrative Court of Finland (kho.fi, in Finnish) provides a significant outline of the relationship between the Non-discrimination Act and the Basic Education Act. The case in question concerned the possibility of a disabled child to continuing in their old school after the family moved to another school’s catchment area. According to the municipality's rules, while a child can continue in their old school after relocating, the municipality will not arrange school transport for this child. In this case, the child needed school transportation because of their disability.
According to section 32 of the Basic Education Act, a municipality may oblige a child’s guardians to be responsible for school transport if the child is admitted to a school other than the nearby one determined by the municipality. According to the Supreme Administrative Court, the wording of the law is very clear and the municipality's actions complied with the Basic Education Act.
However, the Non-discrimination Act obliges a municipality to make such reasonable accommodations which enable people with disabilities to receive education on an equal basis with others. School transport was necessary for the child in question to attend school and the municipality’s refusal to provide transport reduced the child's ability to enjoy their equal right to continue at their old school after the family moved home. Additionally, the cost of transportation could also not be considered unreasonable, as the trip from the family home to the child’s old school was practically the same as to their nearest school.
The newly-available Yearbook decision of the Supreme Administrative Court confirmed the Non-Discrimination Ombudsman's line (Ombudsman's blog about school transport, in Finnish) on the role of school transport in securing equal educational opportunities. In its decision on the case, the Supreme Administrative Court also relied on the opinion issued by the Non-Discrimination Ombudsman under section 27 of the Non-discrimination Act.
Although the Supreme Administrative Court's Yearbook decision concerned school transport specifically, it has wider implications. The ruling confirmed that when the wording of the Basic Education Act leads to discriminatory outcomes, the Non-discrimination Act must take precedence in guidelines, practices, and decisions. The Non-Discrimination Ombudsman has recently promoted a similar interpretation, for example, in the guidelines on distance education arranged due to the coronavirus pandemic (Statement of the Ombudsman about equality in distance education, in Finnish).
There is cause, then, for municipalities to go through the rules governing student enrolment, school transportation, and those otherwise concerning teaching from the perspective of the Non-discrimination Act. Have indirectly discriminatory elements been included in the guidelines and how do the guidelines take into account the municipality's obligation to make reasonable accommodations to ensure the equality of people with disabilities? Guidelines based on the Basic Education Act alone are not always enough to ensure equal access to education for all students.