dissenting:
In imposing on the Pitt County Board of Education the burden of proof with respect to the plaintiffs’ motion for an injunction, the majority overlooks, I respectfully submit, the procedural posture of this case and, most importantly, the impact of the settlement agreement reached by the parties “as to all matters in dispute” from the date of the original desegregation orders to the date of the court’s approval of the settlement agreement in a consent order, dated November 4, 2009. While the settlement agreement and consent order envisioned further work by the parties, as well as a culminating report from the parties on or before December 31, 2012, the agreement disposed of the foundational disputes, replacing them with the terms of the agreement.
More particularly, the settlement in this case purported to settle all disputes going back to the 1960s and 1970s and to replace those disputes with the terms of the agreement encompassed in the consent order issued by the district court. In that order, dated November 4, 2009, the district court found the settlement agreement to be “fair and reasonable,” and it incorporated the terms of the agreement as the terms of the consent order. The order provides:
Accordingly, the court APPROVES the parties’ settlement and GRANTS the School Board’s motion for judicial approval of its 2006-2007 student assignment plan and revised Policy 10.107 (DE # 23). The court ORDERS the parties to work toward attaining unitary status so that the court may relinquish jurisdiction over this case and restore to the School Board full responsibility for the operation of its schools. The court further ORDERS the parties to submit, on or before December 31, 2012, a report detailing the School Board’s efforts and progress in achieving unitary status and eliminating the vestiges of past discrimination to the extent practicable.
Thus any claim the plaintiffs could make after November 2009 against the Board of Education based on the earlier segregation conduct would have to be couched as a breach of the settlement agreement and consent order. And such a breach is precisely what the plaintiffs alleged in this case in their motion for an injunction.
In their motion for an injunction, the plaintiffs recounted the history of discrimination in the school district and the resolution of all disputes arising from the discrimination with the 2009 settlement agreement and consent order. The plaintiffs also alleged that after the court approved the settlement agreement, the parties worked well together “throughout 2010” in developing a new student reassignment plan for 2011-2012, to replace the 2006-2007 plan. They pointed out how the Board of Education conducted retreats, during which the plaintiffs were able to participate and provide input. But after the Board adopted its 2011-2012 student reassignment plan on November 15, 2010, the plaintiffs found the plan objectionable inasmuch as the Board “rejected a reassignment plan that would have resulted in much better outcomes for racial balance and academic achievement.” They alleged that despite the fact they tried to work with the Board, the Board “has ignored these efforts.” For that reason, the plaintiffs sought to enjoin the Board’s implementation of the 2011-2012 reassignment plan.
*293Addressing the plaintiffs’ motion for an injunction, the district court disposed of the motion as it would have disposed of any motion for an injunction, imposing the burden of demonstrating the need for an injunction on the party bringing the motion. After reviewing all the evidence, the court made findings and concluded that the Board of Education did not breach the undertakings of the 2009 settlement agreement and consent order. It found that in accordance with the settlement agreement and consent order, the Board had held two retreats — one on July 1 and one on October 11, 2010 — to which the plaintiffs were invited, and at those retreats, the “plaintiffs provided input and participated in the discussions concerning the development of a proposed reassignment plan.” The court then found:
While the school board ultimately rejected the [plaintiffs’] plan that plaintiffs maintain better accomplishes the School Board’s stated objectives, the record reveals that the School Board utilized a methodical, reasonable and race-neutral process in developing the 2011-2012 reassignment plan.... Based on the record presently before the court, the court determines that plaintiffs have not demonstrated a likelihood of success on the merits of their claim so as to justify the extraordinary relief they request.
In this manner, the district court applied a burden of proof that is consistent with the disposition of any motion that would endeavor to demonstrate a breach of an agreement and consent order. The one who alleges the breach must carry the burden of demonstrating that it occurred. In this case, the court simply concluded that the breach which the plaintiffs alleged in their motion had not been demonstrated.
Of course, the ultimate question of whether unitary status will have been achieved by December 31, 2012, is a different question and will have to be satisfied by evidence produced by the Board. But the settlement agreement does not anticipate any review of this issue until the December 31, 2012 report is filed by the parties and the issue is presented to the court. At that time, the Board will have to show that its efforts satisfied the requirements of the settlement agreement and consent order in seeking to achieve unitary status.
Accordingly, I would conclude that the district court did not clearly err in its factual findings and did not abuse its broad discretion in denying the plaintiffs’ motion for an injunction. I would therefore affirm the court’s order, dated August 16, 2011, denying the motion.