concurring in part and dissenting in part.
I agree with the majority that “the sole test is the bona fides of [the Johnsons’] religious beliefs.” I do not agree, however, that the record shows that the School Board applied that test in disposing of the Johnsons’ application for exemption. To the contrary, the record clearly shows that the Board applied an erroneous two-pronged test.
As the majority states, the School Board did not give its reasons for denying the Johnsons’ request. However, following the Board’s October 12, 1988 hearing, Joseph Dyer, the Board’s attorney, wrote a letter, dated October 27, 1988, to the Johnsons’ attorney which stated, in pertinent part, the following:
As School Board attorney, I have been asked to respond to your inquiry for additional information.
*393[L]et me assure you that the Prince William County School Board members are genuinely concerned about the delicate question of religious exemptions. They generally base their decisions on the guidance provided by the Supreme Court of the United States, the Fourth Circuit Court of Appeals, Opinions from the Attorney General of Virginia and from the Commonwealth Attorney for Prince William County
On January 9, 1989, Mr. Dyer again wrote to the Johnsons’ attorney as follows:
At the meeting on January 4, 1989 the School Board reviewed your request for reconsideration of its previous decision in the Johnson . . . religious exemption [case] and voted to deny the exemption [request] .... The November 18, 1988 opinion of the Attorney General was considered, and it does not appear that [the Johnsons] meet the criteria contained in that opinion or the legal authorities cited therein.
The record shows that the School Board and its attorney considered and relied upon two Attorney General Opinions, both of which state, erroneously, that the two-pronged test is the appropriate standard for determining entitlement to an exemption.1 *394Moreover, the Board contended in the trial court, 2 and contends in this appeal, that the two-pronged test applies, and, as the majority concedes, “the trial court held that the two-pronged test was applicable.”3
In spite of this, however, the majority concludes that there is nothing in the record to indicate that the Board erroneously applied the two-pronged test in disposing of the Johnsons’ application. The majority focuses upon (1) a report by counsel for the school board staff, not the School Board’s counsel, that was sent to the division superintendent of schools, not to the Board, and (2) a remark made by the School Board chairman at the beginning of the October 12, 1988 hearing. It is clear that the Board’s attorney’s opinion did not concur with the staffs attorney’s opinion, and there is nothing in the record to indicate that the Board relied upon the staffs attorney’s opinion. Furthermore, it is not reasonable to assume that the other Board members relied upon the chairman’s statement as an interpretation of the compulsory school attendance law.
To further support its conclusion that the School Board based its decision solely upon the Johnsons’ failure to establish the bona tides of their religious beliefs, the majority states that “to conclude otherwise would be to charge the School Board with duplicity — saying one thing and doing another — and the record would not support that sort of conclusion.” It is the conclusion reached *395by the majority, however, that charges the School Board with duplicity — saying the Board applied the proper test at its hearing while admitting, as it must, that the Board advocated the improper two-pronged test at trial and on appeal.
It is clear from the record, therefore, that the School Board applied a more stringent test in making its decision than the one prescribed in Code § 22.1-257. It is equally clear that the trial court agreed with the School Board, concluding that “it is a two-pronged test,” requiring a “balancing” of the parents’ beliefs with various alternatives such as home instruction pursuant to Code § 22.1-254.1.4 Therefore, because the School Board applied incorrect law, I submit that it exceeded its authority, acted arbitrarily, and abused its discretion. Code § 22.1-87.
Consequently, I would reverse the trial court’s judgment and remand the case to the trial court with directions that the trial court remand it to the School Board for further proceedings. In the subsequent proceedings, the Board would consider only whether the Johnsons are conscientiously opposed to compulsory school attendance by reason of bona fide religious training or belief.
One of the opinions, dated November 26, 1984, states, in pertinent part, the following: A school board should first ascertain . . . that the parents’ objection is based on a “ ‘bona fide religious training or belief’ ” and not on political, sociological, philosophical or purely personal views.
Parents who, for religious reasons, seek excusal from school attendance also must show to the local school board that public school attendance and its statutory equivalents, such as home instruction, do not accommodate their bona fide religious beliefs. See 1983-1984 Report of the Attorney General at 305. Therefore, after a school board determines that the criteria for a “ ‘bona fide religious . . . belief’ ” under § 22.1-257(C) have been met, it must determine whether the statutory equivalents of public school attendance meet the parents’ religious objections.
1984-1985 Report of the Attorney General 255, 256.
The other opinion, dated November 18, 1988, provides, in pertinent part, as follows:
Section 22.1-257(A)(2) requires that a school board “excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school.” Section 22.1-257(C) further provides that a “ ‘bona fide religious training or belief does not include essentially political, sociological or philosophical views or a merely personal moral code.”
*394As discussed above, § 22.1-257(C) requires that a religious belief not be “essentially political, sociological or philosophical views or a merely personal moral code.” Prior Opinions of this Office recognize the further requirement that parents who, for religious, reasons, seek a religious belief exemption from school attendance or home instruction also must show that school attendance and its statutory equivalents, including home instruction, do not accommodate their bona fide religious beliefs. See Att’y Gen. Ann. Rep.: 1984-1985 at 255, 256; 1983-1984 at 305-06. I am in agreement with the conclusions in these Opinions that these are the criteria that should be applied in determining whether a religious exemption is warranted pursuant to § 22.1-257.
1987-1988 Report of the Attorney General 330, 331-32.
In its brief filed in the trial court, the School Board argued for the application of the two-pronged test and quoted, as supporting authority, the two Attorney General Opinions.
The majority states, however, that “the trial court’s application of the second prong was harmless error.” The majority misses the point. The error that cannot be rectified, absent a new hearing, was that committed by the School Board in applying the wrong law — the two-pronged test. Neither the trial court nor the majority can know whether each Board member rested his decision upon the first prong, the second prong, or both prongs. Thus, the harmless error doctrine cannot be applied.
The trial court stated, inter alia, that the home instruction statute would “accommodate [the parents’] needs” because the law “allows a parent a great latitude” and is “minimally intrusive [in the parents’] right and their desire to teach their children in the way they think they should be taught.” The trial court further opined that “the compelling governmental interest certainly allows this minimal intrusion.”