In a lawsuit against Harvard University, the plaintiffs allege that the undergraduate school deliberately discriminated against Asian-American applicants. The plaintiffs claim that the college did this by manipulating parts of its admission process, especially hard-to-quantify nonacademic measures, including a “personal rating.” The three-week trial in federal district court in Boston ended Nov. 2, 2018. The judge heard final arguments Feb. 13.

Many commentators contend that the Harvard Admissions case is about the legality of affirmative action. The trial court need not and probably will not address this issue. Nor is the court likely to address another underlying fundamental legal question: the legality of discrimination against “overrepresented” groups within the “majority.”

The Supreme Court has ruled that, to improve the educational environment, universities may try to achieve racial/ethnic “diversity.” That means that colleges may classify students into racial/ethnic categories and identify “underrepresented” groups, which the school can favor in admissions. I shall label as “the majority” the members of groups not favored. Assume that the Supreme Court has ruled that such discrimination is legal.

The Supreme Court has never addressed the following question. To achieve the optimal “diversity” for the educational experience, may a university create categories within “the majority,” identify an “overrepresented” group, and discriminate against it? That is the underlying fundamental legal issue in the Harvard admissions case.

Discriminating against an “overrepresented” group within “the majority” is not the same as discriminating in favor of an underrepresented minority group. With a zero-sum game like college admissions, favorable treatment of underrepresented groups inevitably adversely affects the remaining “majority.” Even were one to label this adverse effect as “discrimination,” that would be discrimination against the “majority” as a whole, not against an “overrepresented” group within the “majority.”

The only way to justify the latter would be to recategorize everyone else within the “majority” as an underrepresented minority. Oversimplifying, “whites” would become an underrepresented minority that deserves affirmative action.

If that is what Harvard is doing, it should explicitly say so. Affirmative action in favor of “whites” is far different from affirmative action in favor of other underrepresented minority groups.

Were affirmative action in favor of “whites” permitted, Harvard would have discretion to create a classification called “Jew,” conclude that “Jews” are “nonwhite” and “overrepresented,” and, discriminate against them for the sake of “diversity” and improvement in the educational experience.

Geographically, Israel is in “Asia.” Apparently, Harvard does not classify Jews as “Asian.” Were Harvard to discriminate against Jews for the sake of “diversity” either because Harvard considers them “Asian” or because it simply views Jews as “overrepresented,” the number of victims of its discrimination would increase.

In the 1920's, Harvard President A. Lawrence Lowell wrote: “To prevent a dangerous increase in the proportion of Jews, I know at present only one way, which is at the same time straightforward and effective, and that is a selection by a personal estimate of character on the part of the Admission authorities, based upon the probable value to the candidate, to the College and to the community of his admissions.”

Many organizations have filed amicus briefs on behalf of Harvard. If these briefs argue that Harvard has discretion to discriminate against an “overrepresented” group within the “majority,” these institutions may not appreciate the implication of their position.

In any event, the trial court probably will not reach the issue of discrimination against an “overrepresented” group. Instead, the court may assume that such discrimination is illegal and decide whether Harvard is guilty of such discrimination. The underlying fundamental legal issue, however, needs resolution by the Supreme Court.

William K.S. Wang is Emeritus Raymond Sullivan Professor at the University of California Hastings College of Law.